B 372816
ARTES
1817
SCIENTIA
VERITAS
LIBRARY
OF THE
UNIVERSITY OF MICHIGAN
PLURIBUS
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TUEBOR
51-QUÆRIS-PENINSULAM-AMŒNAM)
CIRCUMSPICE
IINIHI!
RECEIVED IN EXCHANGE
FROM
Harvard University
Library
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7282
-AG
1865
New York (State) Commissioners of the coste-
THE
PENAL CODE
OF THE
STATE OF NEW YORK.
REPORTED COMPLETE
BY THE
COMMISSIONERS OF THE CODE.
ALBANY :
WEED, PARSONS & CO., PRINTERS.
1865.
quh
Libeary
Harvard Univ
5.28-1941
PRELIMINARY NOTE.
THIS Code, containing a proposed system of Penal Law
for the State of New York, has been prepared by the Com-
missioners of the Code, pursuant to the directions contained
in the act of the Legislature by which they were appointed.
A draft of the work has been distributed as required by
that act,* and many alterations and amendments have been
introduced into the present reprint. A title containing a
full system of provisions for the management of state
prisons and county jails, has been added to the original
draft; and the whole is now ready for the consideration of
the Legislature.
In compiling the system of Penal Law embodied in this
Code, the following have been the leading objects of the
Commissioners:
1. To bring within the compass of a single volume the
whole body of the law of crimes and punishments in force
within this state. The existing statute law of crimes,
though comprehensive, does not abrogate rules of the com-
*The act referred to is chapter 266 of the Laws of 1857. It directs the Commis-
sioners to prepare three Codes; the POLITICAL CODE, the CIVIL CODE, and the PENAL
CODE. It provides that the Penal Code must define all the crimes for which persons
can be punished, and the punishment for the same; and that neither of the Codes shall
embrace any provisions concerning actions or special proceedings, civil or criminal, or the
law of evidence. The act further directs that whenever the Commissioners shall have
prepared either Code, they shall cause it to be distributed among judges and other com-
petent persons for examination, after which the Commissioners shall re-examine their
work and consider such suggestions as have been made to them; and that they shall
then cause the Codes, as finally agreed upon, to be reprinted and again distributed, six
months before being presented to the Legislature.
iv
PRELIMINARY NOTE.
mon law making criminal many acts which are untouched
by statute; nor does it, in respect to crimes for which
punishment is expressly prescribed, altogether dispense with
the necessity of reference to the common law to determine
what are the elements which constitute the offense. As
long as the criminality of acts is left to depend upon the
uncertain definitions or conflicting authorities of the com-
mon law, uncertainty must pervade our criminal jurispru-
dence. The value of the Penal Code must ultimately
depend, in great measure, upon its containing provisions
which embrace every species of act or omission which is the
subject of criminal punishment. That this has been fully
accomplished is scarcely to be expected. But it should be
understood that this has been the endeavor of the Commis-
sioners; and if any act or neglect of duty, which, upon a
sound view of public policy ought to receive criminal pun-
ishment, is not made punishable by provisions of the Code,
they hope the omission may be detected, and the necessary
provision supplied, in the course of the deliberations of the
Legislature.
2. To supply deficiencies and correct errors in existing
definitions of crimes. The statutory definitions of offenses,
found in our existing law, are in many instances incomplete
or inaccurate, and in some cases contradictory when com-
pared with each other. They have been revised, and those
which bear upon co-related crimes have been collated, in
the desire to render each definition, as far as possible, com-
plete in itself and independent, consistent with all defini-
tions of analogous crimes, and accurate in including every
grade of the prohibited act, which deserves punishment,
and excluding every act which, though partaking some
element of the offense, is yet seen to be innocent.
The
3. To harmonize the provisions of punishment.
system of punishments instituted by the Revised Statutes
was carefully devised and was harmonious and well pro-
portioned, but later legislation has introduced many ine-
PRELIMINARY NOTE.
qualities and disparities. In this Code these have been, to
-a considerable extent, corrected. In general, however, for
the higher crimes, the punishments prescribed by the exist-
ing law have been retained, except where special reasons
have called for a modification; while in respect to lesser
crimes, the limit of power of the courts to impose fines for
misdemeanors in general, has been somewhat increased,*
and many crimes of inferior grade have been left to be
punished as misdemeanors, the particular measure of pun-
ishment imposed by the existing law, being omitted.
4. To supply prohibitions of acts deserving of punish-
ment, but not punishable by the present law. The progress
of society creates new opportunities and new temptations
to crime, which require to be met by new provisions of
law. The statutes of other jurisdictions have been exten-
sively consulted for provisions which might meet by antici-
pation new developments of crime; and the effort has been
to adapt the Code as fully as possible to the wants of the
present time.
If the views and purposes above mentioned, had been
followed without qualification and restriction in the com-
pilation of the Code, the result would have been quite
different from that which has been reached. The Commis-
sioners have, however, in a number of instances, felt
restrained from framing provisions of the Code in the man-
ner which has appeared absolutely best, by their sense of
the dangers and evils attendant upon hasty innovations.
upon the existing law. They have, in fact, usually con-
sidered, in the first place, the existing statute law of the
state relative to each crime, and so far as it has appeared
correct and consistent, and was believed to have been
approved in practical administration, it has been preserved;
such modifications in phraseology being made, as were
suitable to render the various sections of the Code as a
whole, homogeneous. It has only been where alterations
*See section 14 of the Code, and the note thereto.
vi
PRELIMINARY NOTE.
or additions of the law have been felt to be needed, that
they have been introduced. Influenced by these consider-
ations, the Commissioners have, in many instances, refrained
from omitting a special prohibition of a particular species
of act, even though they thought the provision needless
for the reason that all acts of that class were embraced in
a more general prohibition found elsewhere. Where a
statute forbidding a particular species of acts has for years
existed along with a general provision impliedly embracing
the same cases, there is danger in omitting the special pro-
vision, however needless it may be, lest an inference should
be drawn from the omission, that the act was designed to be
made no longer punishable. Where provisions of existing
statutes have been thought unobjectionable in themselves,
but useless because embraced in effect in other provisions
of a more general character, they have, therefore, in many
cases been retained by the Commissioners, in the belief
that the omission of them may more safely be made in the
ultimate revision of the work by the Legislature, than at
present. And it will be found that the bulk of the Code,
in its present shape, may be materially reduced without
impairing its clearness and efficiency, by a rigid exclusion
of particular provisions which are capable of being com-
bined in general ones, accompanied by some enactment
which shall prevent the argument that because a former
prohibition of an act was omitted from the Code, therefore
it must be deemed the intent of the Legislature that it
should no longer be punishable.
It is to be borne in mind, that the subjects of procedure
and evidence in criminal cases, are excluded from the scope
of the Penal Code; those topics being embraced in the
Codes reported by the Commissioners of practice and
pleadings. The Penal Code relates chiefly to the enume-
ration and definition of crimes, and the designation of the
kind and measure of punishment to be inflicted for each.
The first two titles of the Code, embody some general
PRELIMINARY NOTE.
vii
principles relative to criminal responsibility, which are inde-
pendent of the distinctions between offenses. The fifteen
titles which follow are occupied with provisions relative to
the various crimes, separately considered. The eighteenth
title contains some general provisions concerning the inter-
pretation and application of the preceding portions of the
Code. The nineteenth title treats of prison discipline in
its application to our state prisons and county jails.
To aid in the critical examination of the work, the Com-
missioners have embraced in this volume, several auxiliary
papers. The first of them, which is appended to this pre-
liminary note, is a TABLE OF THE PRINCIPAL CRIMES HERETO-
FORE RECOGNIZED IN THE JURISPRUDENCE OF GREAT BRITAIN
OR AMERICA. This table is not precisely an index to the
Code, though it will serve as such in a measure. It is
intended as a means of testing the completeness of the pro-
visions reported. It mentions the various crimes described
in works on penal law, usually considered authorities in
this country. If a crime is provided for by the Code,
reference is given to the place where the provision may be
found. If no provision has been made, the reason for the
omission is briefly indicated.
Other papers introduced with the same view, will be
found as appendices at the end of the volume.
The Commissioners acknowledge, with thanks, the assist-
ance rendered them in revising their original draft of this
Code, by many gentlemen of the profession in this state and
´elsewhere, who have contributed suggestions towards the
perfection of the work. Assistance of this description has
been rendered by so many friends that it would be difficult
to mention all. The Commissioners may, however, with-
out undervaluing the contributions of others, mention
CHARLES SPRENGEL GREAVES, Esq., of London, one of her
majesty's counsel, as one to whom they are under especial
obligations. Mr. GREAVES' labors and experience in the
reform of the criminal law, as one of the commissioners
viii
PRELIMINARY NOTE.
for the amendment of the statute law of Great Britain, and
otherwise,―extending over more than a decade of years,
and covering nearly all the important topics of the law of
crimes,-qualified him in an eminent degree for the task
of advising upon the labors of the Commissioners; and a
careful and painstaking examination of their draft, made
by him, enabled him to make numerous suggestions towards
its improvement, a large number of which are embodied
in this reprint.
The Commissioners cannot close this note without express-
ing their obligations to Messrs. BENJAMIN VAUGHAN ABBOTT
and AUSTIN ABBOTT, of the bar of New York, who have
assisted them in portions of their work on the Political,
Civil and Penal Codes, and to whose diligence, ability and
accurate learning they have been much indebted.
With these explanations, the Commissioners respectfully
submit the Penal Code to the consideration of the Legis-
lature.
DAVID DUDLEY FIELD.
WM. CURTIS NOYES.
ALEXANDER W. BRADFORD.
New York, December, 1864.
A TABLE
OF THE
PRINCIPAL CRIMES,
HERETOFORE RECOGNIZED IN THE
LAW OF GREAT BRITAIN OR AMERICA,
SHOWING
WHERE THEY ARE TREATED IN THE PENAL CODE, OR, WHY THEY ARE
OMITTED FROM IT.
{
Abandonment of children.
This offense is covered by section 332 of the Penal Code.
Abduction.
This term is commonly used to designate taking a woman and
compelling her to marry or to be defiled; accomplished by means
of force used either at the taking, or at the marriage or defilement.
This offense was made felony by Stat., 2 Hen. VII, ch. 2, and
benefit of clergy was taken away by Stat., 39 Eliz., ch. 9.
This crime is made punishable in part by section 319 of the
Code; but chiefly by sections 326 and 327.
Abortion.
Using means to procure abortion is covered by section 334.
Submitting to attempt to procure abortion, by section 335.
Cases where death results are provided for by sections 249 and
250.
x
TABLE OF CRIMES.
Absence from church.
The omission to attend church for one month, was made indicta-
ble by statute, in England. See Stat., 23 Eliz., c. 1, § 5; 3 Jac. 1,
c. 4; 2 Chitt. Cr. L., 20, note d. Similar statutes have at former
times existed in this country.
No provisions enforcing attendance at church are introduced in
the Code; though the right to attend is protected by sections 54,
55 and 56.
Accessories.
Accessories in felony are made punishable by section 28.
Administering poison. See Poison.
Adulterations of food, &c.
Are covered by sections 451, 452.
Adultery.
This is not criminally punishable by the English common law,
though it is by the law of Scotland, and by the statutes of several
of the United States.
In this state it has not been considered a subject of criminal
punishment; and the question being a familiar one, and our existing
rule well settled, the commissioners have not suggested any change.
Affidavit.
False swearing in an affidavit is made perjury by section 150.
Procuring another to make a false affidavit is subornation of per-
jury, by section 162.
The refusal of an officer to take and certify an affidavit, in a pro-
per case, is covered by section 215.
Making an affidavit, or taking one in unauthorized cases, is
covered by sections 181 and 182.
The refusal of an individual to make an affidavit is not made
criminal, except so far as, under peculiar circumstances, it may
constitute a criminal contempt of court, under section 201, subdi-
visions 4, 5 or 6. In general, the duty is left to be enforced by
attachment or other appropriate civil remedy.
Affray.
At common law, the fighting together of two or more persons,
in some public place, to the terror of the people. It is said to be
TABLE OF CRIMES.
xi
distinguishable from common assault and battery, in that it must,
of necessity, occur in a public place; and from riot, in that two
persons may commit an affray, while at least three are required to
constitute riot.
In the Code, what would be an affray at common law, is left to
be punished as a common assault and battery, under section 307;
unless it is attended by circumstances which make it a duel, under
section 293; or a riot, under section 474.
Animals.
Injuries to property in animals are covered by sections*698 and
699; and see 702.
Cruelty to animals, by section 699; and see 702.
Instigating fights between animals, by sections 700 and 701.
The criminal responsibility of the owner of a mischievous animal
which kills a human being, is defined by section 253.
Apostacy.
A total renunciation of Christianity, by one who has once pro-
fessed it, but afterwards embraces either a false religion or no
religion at all. This was made punishable by 9 and 10 Wm. III,
ch. 32.
It is not treated as a crime by the Code.
Arresting a corpse.
Arson.
Covered by section 359.
Originally, arson was the burning of a human habitation. The
term has been, in this state, and in other jurisdictions, extended
by statute, to embrace the burning of other descriptions of pro-
perty not involving danger to human life.
In the Code, the term is used in its original and restricted sense.
See sections 521-539.
Other criminal burnings are punishable as malicious mischief;
under section 703.
Artisans going abroad.
It was at one time criminal in England for artisans to leave the
realm, with an intent to exercise their trade in a foreign country;
though the rule is now abrogated.
This is not made punishable by the Code.
Xi
TABLE OF CRIMES.
Assault and Assault and Battery.
Covered by sections 304–308.
Assault with intent to kill.
Covered by sections 278, 279.
Assault with intent to commit other felony.
Covered by sections 290, 292.
Assignments. See Fraudulent assignments.
Attempts.
As respects many crimes, the attempt is declared punishable
equally with the commission.
Besides these provisions, attempts in general are covered by sec-
tions 745, 746.
Attorneys.
Buying demands to sue, is covered by section 194.
Lending money upon claims received for collection, by section
196.
Renewing application for stay of trial, without leave, by section
202.
Fraudulent practices, by section 209.
Allowing process to be wrongfully sued out in his name, by sec-
tion 210.
Misconduct relative to criminal prosecutions, by sections 730,
731.
Auctioneers.
Various offenses by, are covered by sections 502-510.
Barratry.
In the sense of misconduct by a ship master, this offense, so far
as it is deemed a criminal offense properly cognizable by the law
of this state, is covered by section 628. See also sections 630 and
632.
In the sense of stirring up suits and quarrels, barratry-or bar-
retry-is covered by sections 190-193.
Bathing in public. See Exposure of the person.
TABLE OF CRIMES.
BLICK
Battery. See Assault.
Bawdy houses.
Covered by sections 367, 369.
Begging.
Is not treated as a crime, but left to be dealt with under the
provisions reported in the Code of Criminal Procedure, relative to
vagrants, so far as they apply.
Bets and wagers.
In conformity with the existing law, these are made criminal in
certain cases only. See sections 62, 388, 389, 390, 400, 486, 700.
Bigamy.
Covered by sections 338-340. See also section 341.
Black mailing. See Extortion.
Blasphemy.
Covered by sections 31-33.
Body snatching.
Covered by sections 355–357.
Breaking. See Housebreaking, Pound Breach and Prison
Breach; also Sabbath Breaking.
Bribery.
Of electors, is covered by sections 61-65.
Of executive officers, by sections 98, 99, 102-109.
Of legislative officers, by sections 120, 121.
Of judicial officers, jurors, &c., by sections 125, 126, 127, 129.
Of witnesses, by sections 162-170.
Of officers or agents of the state employed on the canals, by sec-
tions 516, 517.
Buggery.
Is made punishable, though without employing this term, by
sections 343, 344.
xiv
TABLE OF CRIMES.
Bull baiting.
Covered by sections 701, 702.
Burglary.
Búrial.
Covered by sections 540-548.
Violations of the right of, are covered by sections 345–362.
Buying.
A corpse for purposes of dissection is covered by section 356.
A public office, by section 106.
Lands in suit, by section 187.
Pretended titles, by section 188.
Demands for suit, by attorneys, &c., by sections 194, 195.
Lottery tickets, by section 374.
Stamped bottles, by section 417.
Carnal abuse of children.
Covered by section 319, subd. 1. See also sections 327-329.
Carrying concealed weapons.
Covered by section 455.
Challenging.
To fight a duel, is covered by section 297.
To engage in a prize fight, by sections 486, 487.
Champerty.
An agreement to assist another in prosecuting a suit, in con-
sideration of receiving a share of the sum or property recovered.
So far as the contracts of this nature are criminal by our existing
law, the provisions relating to them have been retained; without
being extended. See sections 187, 188, 194–200.
Cheats.
Covered by sections 620-627.
Children.
Abandoning children, is covered by section 332.
Stealing, by section 337.
Fraudulently producing, by section 212.
TABLE OF CRIMES.
XV
Substituting one for another, by section 213.
Neglect to provide for, by section 333.
Concealing birth, or death of, by section 336.
Carnal abuse of, by section 319.
Enticing away for illicit purposes, by section 329.
Cockfighting.
Covered by sections 701, 702.
Compassing to kill the king.
This is mentioned as a specific offense by early English writers.
Under our elective form of government, no necessity has been
felt for guarding the lives of executive officers, by provisions of law
additional to those prescribed in favor of citizens; and no such
provisions are embodied in the Code.
Compounding crimes.
Covered by section 183.
Compounding prosecutions.
Covered by section 184.
Concealed weapons.
Carrying these, is covered by section 455.
Conjuration, Divination, Fortune-telling, Enchantment,
Magic, Prophesying, Sorcery, Witchcraft.
These have formerly been dealt with as crimes, upon the theory
that it was possible that truth should be ascertained, or real effects
produced, by supernatural means. In this aspect the law of this
subject is obsolete.
Practices of pretending to exercise supernatural powers, or make
pretended revelations, are left to the operation of the law relative
to false pretenses or to vagrants.
Conspiracy.
Covered by sections 224-226, 673.
Contempts.
Such contempts as are deemed proper subjects of indictment, are
made indictable, by section 201. See also 202-205.
xvi
TABLE OF CRIMES.
Contempts generally are left to be punished as such, by the
appropriate proceeding for that purpose. See sections 740, 741,
785.
Counterfeiting.
Covered by sections 553–583.
Crime against nature.
Provided for by sections 343, 344.
Cruelty to animals.
Covered by sections 699–702.
Cursing.
Treated under the term "profane swearing," in sections 34-37.
Cutting stamps.
From writings, with intent to use them fraudulently upon other
writings. This is made punishable in Eng., by 12 Geo. III, ch. 48.
This being a fraud upon the United States revenue, is left to be
punished by the laws of the United States.
Dacoity.
This term is used in the recent Indian Penal Code to designate
robbery committed by persons going in gangs for that purpose.
Without employing this name, an increased punishment is pro-
vided for this form of robbery by section 289.
Defamation.
•
Criminal penalties are not extended to slander.
Libel is covered by sections 309–318.
Deforcement.
In Scotch criminal law, an attempt to obstruct justice by hin-
dering or resisting officers of the law in the execution of their duty.
The various forms of this offense are covered, without employing
this name, by sections 59, 100, 101, 134, 135, 144, 180, 201, subd.
5, 224, subd. 5, 440, 475, subd. 2, 484, 501.
Demembration.
In Scotch law, the separation of any member from the body.
Is treated under the term "maiming" in sections 263–271.
TABLE OF CRIMES.
xvii
Desertion.
Desertion of soldiers from military service. In England this
was formerly a crime cognizable in the common law courts, though
it is believed to be so no longer.
It is left by the Code to be dealt with by the military law. See
section 785.
Directors of corporations.
Various offenses by, are covered by sections 646–668.
Disorderly houses.
Covered by sections 368, 369. See also section 675.
Disorderly persons.
This Code does not provide for disorderly persons, but leaves
them to be dealt with under the system reported in the Code of
Criminal Procedure.
Dissection.
Dissection of human bodies is made punishable, except in special
cases, by section 349.
Disturbing meetings.
Disturbing religious meetings is covered by sections 55, 56.
Disturbing political meetings, by sections 79-81.
Disturbing funerals, by section 360.
Disturbing other lawful meetings, by section 473.
Divination. See Conjuration.
Drunkenness. See Intoxication.
Dueling.
Covered by sections 246, 293-303.
Eavesdropping.
At common law, the offense of listening about a dwelling house
to hear and repeat what is said therein.
This offense is extended to relate to buildings generally, and
made punishable by section 471.
C
xviii
TABLE OF CRIMES.
Elections.
*
Frauds upon the elective franchise, and other infringements of the
purity and freedom of elections, are provided for by sections 61-95.
Embezzlement. "
The existing law relative to this offense is considerably enlarged
and strengthened by sections 601-612.
Embracery.
At common law, the attempt to corrupt a jury.
Without using this term, the offense has been provided for, not
only as respects juries, but also as to referees, arbitrators and all
persons authorized to hear and determine a controversy, by sections
125, 131. See also sections 128, 129, 133.
Engrossing.
At common law, the buying up of large quantities of provisions
with intent to raise the market price by creating a scarcity.
The tendency of our law being towards liberty in matters of
trade, the mere purchasing of goods in quantities is not declared
punishable by the Code. But the use of any fraudulent means to
affect the market price of property is covered by section 469.
Escape.
The allowing a person lawfully in custody to depart from con-
finement; also the departure of such person from the place of con-
finement, if accomplished without breaking the same.
Covered by sections 136-146.
Exercising trade.
Exercising a trade without having served apprenticeship, was
made indictable by Stat., 5 Eliz., ch. 4.
No such rule is deemed applicable in this state.
Exporting.
Exporting wool, leather, sundry metals, live sheep, &c., was
formerly criminal in England. (3 Co. Inst., 95-97, note.)
No such offense is recognized in the Code.
TABLE OF CRIMES.
xix
Exposure of the person.
Provided for by section 363.
Extortion.
Covered by sections 613-619.
Falcon stealing.
This was made felony by Stat., 37 Edw. III, ch. 19; but that act
amounts only, in fact, to declaring falcons, hawks, &c., property,
therefore the subject of larceny.
General provisions upon the subject of larceny are given, in sec-
tions 584-600; but the question what is to be deemed property, is
not within the scope of the Code.
False personation.
Covered by sections 620-622.
False pretenses; False tokens.
Obtaining property by false pretenses or tokens, is covered by
sections 623–627.
False weights and measures.
Using them to defraud, is covered by sections 634-640.
Forcible entry and detainer.
Covered by section 492.
Forcible marriage. See Abduction.
Forestalling.
As described by Stat., 5 and 6 Edw. VI, ch. 44, consists in buying
up merchandise on the way to market; or dissuading persons from
bringing merchandise to market; or persuading them to enhance
the price, when there.
The tendency of our law being towards liberty in matters of
trade, these acts are not made punishable unless some false or
fraudulent means are employed to affect the market price. That
offense is covered by section 469.
Forgery.
Covered by sections 553–583.
XX
TABLE OF CRIMES.
Fornication.
This is an indictable offense in Scotland and in several of the
United States.
As it is not indictable by our existing law, and no new reasons
are perceived for declaring it so, the commissioners have not urged
any change.
Fortune-telling. See Conjuration.
Frauds.
In fitting out and destroying vessels, are covered by sections
628-630.
In destroying property insured, by sections 632, 633.
In use of false weights and measures, by sections 634–640.
In management of corporations, by 645-668.
In sale of passage tickets, by sections 669-682.
In relation to documents of title to merchandise, by sections
683-691.
To affect market price of merchandise, by section 469.
Fraudulent assignments.
Covered by sections 641-644.
Fraudulent insolvencies.
By individuals, are covered by sections 641-644.
By corporations, by sections 659–660.
Gambling, Gaming.
Covered by sections 385–400.
Gambling or Gaming houses.
Game.
Prohibited by section 392, and see 397, 390.
The existing law for the preservation of game is continued in
force, by section 786, subd. 23.
Grand Larceny.
Covered by sections 587, 589, 591, 592.
TABLE OF CRIMES.
xxi
Hamesucken.
In Scotch law, the felonious seeking and invasion of a person in
his dwelling house..
<<
The burning of a dwelling house, is treated under the term
arson ;" and breaking or entering a dwelling house, for criminal
purposes, under "burglary." Except as provided under these
heads, the Code does not, in general, regard the circumstance that
a criminal injury was inflicted within the dwelling of the sufferer,
as modifying the character of the crime.
Health laws.
Violations of, are provided for by sections 435–441.
Heresy.
Is enumerated among crimes by English authorities; as consist-
ing, not in a total repudiation of Christianity, but in a denial of
some of its essential doctrines, publicly and obstinately avowed.
The tendency of our law is so decided towards liberty in matters
of religious faith, that provisions against heresy are clearly un-
suitably embodied in the Code.
Homicide.
Covered by sections 236–262.
Horse racing.
Racing near a court, is prohibited by section 207.
For a bet or stake, by section 400.
Upon a highway, by section 472.
House breaking.
Covered by section 550.
Illegal voting.
Covered by sections 68-74.
Incest.
Provided for by section 342.
Indecent Exposures.
Provided for by section 363.
xxii
TABLE OF CRÍMES.
Insolvencies.
Fraudulent insolvencies by individuals are covered by sections
641-644.
Those of corporations, by sections 659, 660.
Intoxication.
Intoxication of physicians, is provided for by sections 257, 404.
Intoxication of persons employed on railroad trains, by section
462.
Intoxication in public places, by section 725.
Keeping bawdy and disorderly houses.
Covered by sections 367–369.
Kidnapping.
Covered by sections 272–276.
Larceny.
Covered by sections 584-600.
Leasing making.
In Scotch law, calumny directed against the king.
Under our elective form of government no necessity is perceived
for punishing calumny affecting public officers, otherwise than as
they share the protection accorded to citizens generally. No pro-
visions on this subject are given in the Code.
Libel.
Covered by sections 309–318.
Lotteries.
Prohibited by sections 370-384.
Magic. See Conjuration.
Maiming.
Of persons, is covered by sections 268–271.
Of animals, by section 699.
TABLE OF CRIMES.
xxiii
Maintenance.
Officiously intermeddling in a suit that no way belongs to one;
by assisting either party, with money or otherwise, to prosecutę
or defend it.
In so far as intervening in a single lawsuit in which one is not
a party, is criminal by our existing law, the provisions relative to
it are retained, without being extended. See sections 187, 188,
194-200.
The practice of fomenting lawsuits is made punishable by sec-
tions 190-193.
Malicious mischief.
Covered by sections 696-722.
Malpractice.
As to malpractice by attorneys, see sections 194, 196, 202, 209,
210, 730, 731.
By physicians, 257, 404.
Manslaughter.
Covered by sections 248-259.
Masquerades.
Are covered by sections 478, 480.
Mayhem. See Maiming.
Mock auctions.
Covered by section 627.
Multiplication of precious metals.
This was formerly considered a crime in England. (3 Co. Inst.,
74.)
The impossibility of the act being now understood, the rule by
which it was once thought punishable, is, of course, obsolete.
Murder.
Covered by sections 241-257.
Mutilation.
As to mutilations of persons and animals. See Maiming.
As to mutilations of written instruments. See sections 147, 148,
715, 716, 721.
xxiv
TABLE OF CRIMES.
.
Nuisances.
Punishable by sections 430-434.
Obscene books and pictures.
Covered by sections 363-366.
Omitting to bury.
Omítting to bury the body or remains of a dead person, is made
punishable by sections 350-353.
Perjury.
Covered by sections 150-161.
Petit larceny.
Covered by sections 586-588, 590.
Prophesying. See Conjuration.
Petit treason.
This offense was abolished by the Revised Statutes, and is not
restored by the Code. See section 239.
Piracy.
Is left to be dealt with under the laws of the United States.
Burning a vessel within this state is, however, made arson, by sec-
tions 521 and 522; and destroying or injuring vessels, or their
cargoes, with intent to defraud insurers, &c., is punishable by sec-
tions 628-630.
Poison.
Administering stupefying drug to facilitate commission of felony,
is covered by section 292.
Poisoning food, wells, &c., by section 405.
Selling poison without record and label, by sections 446-448.
Poisoning animals, by section 698.
Posting.
For not fighting a duel, is covered by section 300.
Pound breach.
It is doubted, in English law, whether breaking a pound to
rescue cattle therefrom, when unaccompanied by any breach of the
peace, should be deemed a criminal offense, or only a civil trespass.
TABLE OF CRIMES.
XXV
It has not been thought needful to specify it as a crime in the
Code. If the circumstances amount to resisting a public officer,
or rescuing property from one, the act is punishable by sections
180, 135.
Polygamy.
This offense is included in bigamy, which is covered by sections
338-340.
Prison breach.
Covered by sections 136-146.
Prize fights.
Covered by sections 485–491.
Profane swearing.
Covered by sections 34-37.
Racing. See Horse Racing.
Rape.
Provided for by sections 319–324.
Regrating.
As described by Stat., 5 and 6 Edw. VI, ch. 14, is the buying
up of provisions in any market and selling them again in the same
market or within four miles of it.
The rule of the English law, punishing this, is deemed inappli-
cable at the present day in this state. See Engrossing, Forestalling.
Receiving stolen goods.
Covered by section 598.
Rescues.
Covered by sections 134, 135; see also 141-144.
Reset of theft.
In Scotch law, is the receiving and keeping of stolen goods,
knowing them to be such, and with intent to conceal them from
the owner.
This offense is treated in the Code, but not under this name.
See section 598.
D
-xxvi
TABLE OF CRIMES.
Resisting officers.
General resistance to a statute is covered by section 59.
Resisting election officers, by sections 83, 84. ·
Resisting executive and administrative officers generally, by
sections 101, 180, 224, subd. 5, 475, subd. 2.
Compelling adjournment of legislature, by section 115.
Retaking goods from custody of officer, by section 135.
Assisting prisoner to escape from officer, by section 144.
Resisting execution of process, by sections 179, 484.
Intimidating officer, by section 185.
Obstructing health officer, by section 440.
Obstructing revenue officer, by section 501.
Returning from transportation.
Riot.
The provisions of the English statute upon the subject of return-
ing from transportation before discharge are, of course, deemed
inapplicable in this state.
Covered by sections 474, 475, 481-483.
Robbery.
Covered by sections 280–289.
Rout.
Covered by sections 476, 479.
Sabbath breaking.
Covered by sections 38-52.
Sacrilege.
Provided.for, without however employing this term, by sections
550, 704.
Scolds.
It has not been thought needful to continue the rule of the com-
mon law specifically punishing common scolds.
Second offenses.
Increased punishment for these is prescribed by sections 748-751.
Seducing.
Artisans to leave the realm, was formerly indictable in England,
but is believed to be so there no longer.
1
TABLE OF CRIMES.
xxvii
No reason is perceived for creating such a crime in this state.
Seducing persons to serve a foreign prince as a soldier, was made
felony by 9 Geo. II, ch. 30, § 1.
This is left to be dealt with under the laws of the United States.
Seducing soldiers from their duty, was made punishable by Stat.,
37 Geo. III, ch. 70.
This is not embraced in the Code, but left to be dealt with under
the military law, or under the laws of the United States.
Seduction of females.
The provisions of the existing law upon this subject are embodied
in sections 328-331.
Selling liquor.
In court houses or prisons, or near election polls, is made pun-
ishable by section 208.
Selling in violation of excise laws, by sections 724, 726–728.
Sepulture.
Violations of the right of, are covered by sections 345–362.
Shooting.
Covered by sections 278, 290, 808, 495.
Slander.
Has never been recognized among crimes, in this state; and no
reason has been perceived for a change in the law in this respect.
Smuggling.
Is left to be dealt with under the laws of the United States.
Sorcery. See Conjuration.
Seconding.
Seconding a duel or prize fight, is covered by sections 296, 485.
Slung shot.
Carrying them, or using them, is covered by section 454.
Slave trade.
Is left to be dealt with by the laws of the United State,
xxviii
TABLE OF CRIMES.
Sodomy
Is made punishable, without employing this term, by sections
343, 344.
Sorning.
The masterful taking of meat and drink without payment. 2
Hume on Crimes, 345. In the undisciplined state of society in
Scotland, in early times, peculiar temptations to this offense ex-
isted, together with peculiar facilities for its commission; and it
was therefore made a capital crime.
No reasons are perceived in the present state of society in this
state for distinguishing the criminal taking of food or drink, from
that of other property. This offense is therefore left to the
general provisions relative to robbery, larceny, extortion, &c.
Spies.
Are left to be dealt with under the military law.
Southrief.
This is a general term employed in Scotch law, to designate all
forcible thefts or depredations.
The offenses included in it are treated in the Penal Code under
the appropriate titles of our law, such as "robbery."
Striking with weapon-in a church or church-yard.
This was made punishable by cutting off an ear, or branding,
besides excommunication, by Stat., 5 Edw. VI, ch. 4.
No reason is perceived why the law of New York should dis-
tinguish assaults in churches or church-yards, from those in other
buildings or places.
Subornation.
Subornation of perjury is covered by sections 162, 163, and see
166-169, 170.
Suicide.
Covered by sections 227-235.
Swearing.
Treated under "profane swearing." See sections 34-37.
TABLE OF CRIMES.
xxix
Theftbute.
In Scotch law, consists in a corrupt compact with a thief, where-
by a person having him in his power, barters public justice for
profit to himself; whether by taking a ransom from the thief to
dismiss him, or by receiving a share of what he has stolen, to pro-
tect him.
This is covered by the provisions relative to compounding
crimes and prosecutions; sections 183, 184.
Threatening letters.
Covered by section 618.
Threats.
The use of threats is made punishable, in various cases, by sec-
tions 53, 54, 80, 81, 82, 100, 116, 131, subd. 3, 280–283, 300, 318,
458, 474, 614, 618, 733, 734.
Trade marks.
Counterfeiting them, is made punishable by sections 410-416.
Treason.
Covered by sections 57–60.
Trespasses to lands.
So far as these are made punishable by the existing law, they
are declared so by the Code, with some additional provisions. See
sections 492, 493, 494, 705, 707–714.
Tumultuous petitioning.
By several English statutes, the right of assembling in numbers
to present petitions to the king or parliament is restricted, under
criminal penalties. See 13 Car. 2, c. 5; 57 Geo. III, ch. 19, § 23.
The provisions relative to riot, unlawful assemblies, &c., are all
that are deemed necessary, in this state, upon this subject.
Unlawful assemblies.
Covered by sections 477-480, 482.
Unlawful oaths.
Taking an oath in any case not authorized by law, is covered by
section 181.
Administering such an oath, by section 182.
xxx
TABLE OF CRIMES.
Usury.
Receiving usury is made punishable by section 426; conforma-
bly to the existing law. It has not been thought desirable to
extend the penalty to paying usury.
Vagrants.
The Code does not provide for vagrants, but leaves them to be
dealt with under the system reported in the Code of Criminal
Procedure.
Wagers. See Bets.
Witchcraft. See Conjuration.
ANALYSIS OF THE CONTENTS.
PRELIMINARY PROVISIONS.
Page.
1
SECTION 1. Title of Code,.
2. Its effect,
3. "Crime" and public offense defined,.
4. Crimes, how divided,..
5. "Felony" defined,.
•
6. "Misdemeanor" defined,
7. Objects of the Penal Code,.
•
•
8. Conviction must precede punishment,.
9. Jury are to find degree of crime,
10. Construction of the Penal Code,.
11. Of sections declaring crimes punishable,
•
12. Punishments, how determined,.
13. Punishment of felonies,. . . .
14. Punishment of misdemeanors, .
TITLE I.
4
5
5
23 + LO
5
5
5
5
6
6
6
6
OF THE PERSONS LIABLE TO PUNISHMENT FOR CRIME.
SECTION 15. Who are liable to punishment,.
16. Who are capable of committing crimes,.
17. Intoxicated persons,..
18. Morbid criminal propensity,
•
19. Insane persons, acquitted, how disposed of,.
20. Involuntary subjection, .
21. Subjection by duress,.
•
22. Subjection inferred from coverture,.
23. When not inferred,.
24. Inference may be rebutted,
•
25. Exemption of public ministers,.
•
7
8
9
10
•
10
10
10
10
12
12
12
TITLE II.
OF PARTIES TO CRIMES.
SECTION 26. Classification of parties to crimes,.
27. Who are principals, .
12
13
xxxii
CONTENTS.
SECTION 28. Who are accessories,..
29. No accessories in misdemeanor,
30. Punishment of accessories,
• •
•
TITLE III.
OF CRIMES AGAINST RELIGION AND CONSCIENCE.
Page.
13
13
!
13
}
SECTION 31. Blasphemy defined,.
32. Words used in serious discussion,.
33. Blasphemy a misdemeanor,.
34. Profane swearing defined,.
35. Punishment of profane swearing,
14
14
15
15
15
36. Summary conviction for profane swearing,.
37. Penalties, how collected,
38. The Sabbath,
15
• •
15
•
15
39. Sabbath breaking,.
16
40. "Day" defined,.
41. "Sabbath breaking" defined,
16
16
.
42. Servile labor,..
16
43. Undue travel,.
17
44. Persons observing another day as a Sabbath, .
17
48. Serving process,
45. Public sports, . . . . .
46. Trades, manufactures and mechanical employments,
47. Public traffic, .
49. Punishment of Sabbath breaking,.
17
17
18
18
18
50. Forfeiture of commodities exposed for sale,.
•
18
51. Proceedings to collect fines imposed by this chapter,
52. Remedy for maliciously serving process,.
18
19
53. Compelling adoption of a form of belief,
19
54. Preventing performance of religious act,
55. Disturbing religious meetings,
56. Definition of the offense,.
19
• •
19
19
TITLE IV.
OF TREASON.
SECTION 57. Treason defined,
20
58. Levying war defined,.
21
59. Resistance to a statute, when levying war,.
60. Punishment,.
21
21
TITLE V.
OF CRIMES AGAINST THE ELECTIVE FRANCHISE.
SECTION 61. Bribery, menace and other corrupt practices, at elections,..
62. Betting upon elections,...
1
22222
CONTENTS.
xxxiii.
SECTION 63. Unlawful offers to procure offices for electors,
64. Communicating such offers,
•
65. Furnishing money for elections, except for specified purposes,
66. Defrauding an elector in his vote,
67. Obstructing electors in attending elections, .
68. Voting more than once,.
69. Procuring illegal votes,
•
•
70. Importing voters who are unqualified,.
71. Illegal voting by inhabitant of another state,
72. Illegal voting by inhabitant of this state,.
•
73. Illegal voting by resident of different election district,
Page.
23
23
23
24
24
24
25
25
25
25
25
74. Illegal voting by unpardoned convict,
75. Procuring name to be registered improperly,
76. Personating qualified voters,. . . . .
77. False statements upon applying for registry,
25
26
26
26
78. What is deemed a false statement,.
79. Disturbance of public meeting,.
80. Preventing public meetings,.
81. Preventing electors from attending public meetings,
82. Preventing electors from voting,.
83. Disobedience to lawful commands of inspectors,
or
84. Riotous conduct, or violence, which impedes elections,
85. Summary arrest therefor,...
86. Such arrest no bar to a subsequent prosecution,
87. Destroying ballots or ballot-boxes,.
88. Keeping false poll lists,.
26
27
27
27
27
27
►
27
•
28
28
28
28
89. Misconduct of inspectors,.
90. Falsely canvassing votes, or certifying result of election,.
91. Election defined,..
29
92. Irregularities in election no defense for violations of this chapter,.
93. Rights of persons lawfully interfering in elections declared,.
94. Submission of questions to the people,.......
22222
29
29
29
30
30
95. Good faith in offering to vote, a defense for alleged illegal voting,
30
TITLE VI.
OF CRIMES BY AND AGAINST THE EXECUTIVE POWER OF THE STATE.
SECTION
96. Acting in a public office without having qualified,.
97. Acts of officer de facto, not affected,.
98. Giving or offering bribes,.
•
99. Asking or receiving bribes,
· •
31
31
31
32
100. Attempting to prevent officers from performing duty,.
101. Resisting officers,
32
32
102. Taking excessive fees,.
32
•
103. Taking reward for omitting or delaying official acts,.
32
•
104. Taking fees for services not rendered,.
33
105. Taking unlawful reward for services in extradition of fugitives,...
106. Buying appointments to office,.
33
33
E
xxxiv
CONTENTS.
SECTION 107. Selling appointments to office,.
108. Taking rewards for deputation,
Page.
33
34
109. Unlawful grant or deputation void, except as to official acts done
before conviction, .
110. Exercising functions of office, wrongfully,
111. Refusal to surrender books, &c., of office to successor upon demand,
112. Administrative officers,
34
34
34
35
TITLE VII.
OF CRIMES AGAINST THE LEGISLATIVE POWER.
SECTION 113. Preventing the meeting or organization of either branch of the
legislature,
114. Disturbing the legislature while in session,
115. Compelling adjournment,.
116. Intimidating a member of the legislature, .
117. Compelling either house to perform or omit any official act,.
118. Altering draft of bill,.
119. Altering engrossed copy,
120. Giving bribes to members of the legislatuſe,
121. Receiving bribes by members of legislature,
122. Witnesses refusing to attend before the legislature or legislativo
committees, .
123. Refusing to testify,.
124. Members of the legislature liable to forfeiture of office,.
TITLE VIII.
OF CRIMES AGAINST PUBLIC JUSTICE.
CHAPTER I. Bribery and corruption, . . . .
II. Rescues,..
III. Escapes and aiding therein,....
IV. Forging, stealing, mutilating and falsifying judicial and public
records and documents, .
V. Perjury and subornation of perjury,
VI. Falsifying evidence,...
VII. Other offenses against public justice,
VIII. Conspiracy,..
CHAPTER I.
BRIBERY AND CORRUPTION:
SECTION 125. Giving bribes to judges, jurors, referees, &c.,
126. Receiving bribes by judicial officers,
127. Receiving bribes by jurors, referees, &c.,
35
35
36
36
36
36
37
37
37
38
38
38
39
42
42
ལྤ་རི་
45
46
55
57
75
•
39
39
40
CONTENTS.
XXXV
SECTION 128. Misconduct by jurors, arbitrators and referees,.
129. Judicial officers, jurors, referees, &c., accepting gifts from parties,..
130. “Gifts" defined,.
131. Improper attempts to influence jurors, referees, or arbitrators,
132. Drawing jurors fraudulently,. . . .
133. Misconduct by officer having charge of juries,.
Page.
40
40
40
40
41
41
CHAPTER II.
SECTION 134. Rescuing prisoners,.
RESCUES.
135. Retaking goods from custody of officer,
CHAPTER III.
ESCAPES, AND AIDING THEREIN.
SECTION 136. Re-arrest of escaped prisoners,
• ·
42
42
43
137. Escape from state prison,
138. Attempt to escape from state prison,.
139. Escape from other than state prison,
140. Attempt to escape from other than state prison,
141. Assisting prisoner to escape from prison,..
142. Carrying into prison things useful to aid an escape,
143. Concealing escaped prisoner,.
43
43
43
•
43
•
44
44
•
44
144. Assisting prisoner to escape from officer,
145. "Prison" defined,.....
44
44
146. "Prisoner" defined,.
.
45
CHAPTER IV.
FORGING, STEALING, MUTILATING AND FALSIFYING JUDICIAL AND PUBLIC
RECORDS AND DOCUMENTS.
SECTION 147. Larceny, destruction, &c., of records by officers having them in
custody,..
148. Larceny, destruction, &c., of records by other persons,.
149. Offering false or forged instruments to be filed or recorded,.
45
45
45
CHAPTER V.
PERJURY AND SUBORNATION OF PERJURY.
SECTION 150. Perjury defined,.
46
151. "Oath" defined,.
49
152. Oath of office,.
49
153. Irregularities in the mode of administering oaths,.
50
154, Incompetency of witness no defense for perjury,
51
155. Witness' knowledge of materiality of his testimony not necessary,
51
xxxvi
CONTENTS,
11
SECTION 156. Making of deposition, &c., when deemed complete,.
157. Statement of that which one does not know to be true,
158. Punishment of perjury,.
159. Summary committal of witnesses who have committed perjury,...
160. Witnesses necessary to prove the perjury, may be bound over to
"
appear,
161. Documents necessary to prove such perjury may be detained,
162. Subornation of perjury defined,.
163. Punishment of subornation,.
164. Convict of perjury declared incompetent as a witness,.
CHAPTER VI.
FALSIFYING EVIDENCE.
SECTION 165. Offering false evidence,.
166. Deceiving a witness,.
167. Preparing false evidence,.
168. Destroying evidence,.
169. Preventing or dissuading witnesses from attending,
170. Bribing witnesses,.
CHAPTER VII.
Page.
51
51
51
52
52
52
53
53
53
55
56
56
56
56
•
57
OTHER OFFENSES AGAINST PUBLIC JUSTICE.
SECTION 171. Injury to records and embezzlement committed by ministerial officers,
172. Permitting escapes, and other unlawful acts, committed by ministe-
rial officers,.
173. Officer refusing to receive prisoner into his custody,.
58
58
59
174. Delaying to take person arrested for crime before a magistrate,
175. Making arrests, &c., without lawful authority,.
59
59
176. Misconduct in executing search warrant,.
60
177. Refusing to aid officer in making an arrest,
60
•
178. Refusing to make an arrest,.
60
179. Resisting execution of process, aiding escapes, &c., in county which
has been proclaimed in insurrection,. . .
60
180. Obstructing public officer in the discharge of his duty,
60
181. Taking extra judicial oaths,.
61
182. Administering extra judicial oaths,.
61
183. Compounding crimes,.
61
184. Compounding prosecutions,.
62
185. Attempting to intimidate judicial or ministerial officers, jurors, &c.,
62
186. Suppressing evidence,.
63
187. Buying lands in suit,.
63
188. Buying pretended titles,.
63
•
189. Mortgage of lands under adverse possession not prohibited,.
64
190. Common barratry defined,.
191. Declared a misdemeanor,.
•
64
64
1
CONTENTS.
xxxvii
SECTION 192. What proof is required,
193. Interest,
194. Buying demands for suit by an attorney,
Page..
195. Buying demands by a justice or constable, for suit before a justice,
196. Lending money upon claims delivered for collection,..
197. Forfeiture of office,....
198. Receiving claims, in what cases allowable,
199. Application of previous sections to persons prosecuting in person,.
200. Witness' privilege restricted,..
64*
64
64
64
64
65
65
65
65
201. Criminal contempts,
66
202. Renewing application to stay trial of an indictment, without leave,
203. Grand juror acting after challenge has been allowed,
68
68
204. Disclosure of depositions taken by a magistrate, .
205. Disclosure of depositions returned by grand jury with presentment,
206. Fraud in applying for insolvent's discharge,.
68
69%
69
207. Racing near a court,.
69
208. Selling liquor in court houses or prisons, or near election polls,.
209. Misconduct by attorneys,..
70
•
70
210. Permitting attorney's name to be used,.
71
211. In what cases lawful,….
71
212. Fraudulent pretenses relative to birth of infant,
213. Substituting one child for another,.
214. Importing foreign convicts,
•
71
72
72
215. Omission of duty by public officer,.
#3
216. Commission of prohibited acts,.
73
217. Disclosing fact of indictment having been found,..
74
218. Grand juror disclosing what transpired before the grand jury,
74
219. Instituting suit in false name,
74
•
220. Maliciously procuring search warrant,..
74
221. Unauthorized communications with convict in state prison,
222. Neglect to return names of constables,
74
74
223. False certificates by public officers,
75
CHAPTER VIII.
CONSPIRACY.
SECTION 224. Criminal conspiracies defined,
•
225. Conspiracies against the peace of the state,
226. Overt act, when necessary,.
..
TITLE IX.
75
78
•
78
CHAPTER I. Suicide,
OF CRIMES AGAINST THE PERSON.
II. Homicide,
III. Maiming,
IV. Kidnapping,
89
8888
79
81
93
Xxxviii
CONTENTS.
CHAPTER V. Attempts to kill,
VI. Robbery,
VII. Assaults with intent to commit felony other than assaults
with intent to kill,.
VIII. Duels and challenges,
IX. Assault and battery,
X. Libel,
CHAPTER I.
SUICIDE.
SECTION 227. Suicide defined,..
228. No forfeiture imposed for suicide,
229. Attempting suicide,..
230. Aiding suicide,
231. Furnishing weapon or drug to commit suicide,
232. Aiding attempt at suicide,.
233. Mental incapacity of person aided, no defense,
234. Punishment of aiding suicide,.
235. Punishment of attempting suicide or aiding an attempt,.
CHAPTER II.
HOMICIDE.
Page.
96*
98
101
102
104
109
79
79
79
80
80
80
80
80
80
SECTION 236. Homicide defined,.
81
237. Different kinds of homicide,
238. What proof of death is required,
239. Petit treason abolished,.
81
82
82
240. Effect of proof of a domestic or confidential relation,.
241. Murder defined,.
82
82
242. Design to effect death, when inferred,.
83
243. Premeditation,
83
•
244. Anger or intoxication no defense,
83
245. Act eminently dangerous, and evincing a depraved mind,
84
•
246. Duel fought out of this state,
84
247. Punishment of murder,
84.
248. Manslaughter in first degree defined,.
84
249. Killing unborn quick child by injury to person of mother,.
250. By administering drugs, &c.,
85
85
251. Punishment of manslaughter in first degree,..
86
252. Manslaughter in second degree defined,
86
253. Liability of owner of mischievous animal,
86
254. Liability of persons navigating vessels,...
86
255. Liability of persons in charge of steamboats,.
86
256. Liability of persons in charge of steam engines,
87
257. Liability of physicians,
87
258. Liability of persons making or keeping gunpowder contrary to law,
87
CONTENTS.
xxxix
SECTION 259. Punishment of manslaughter in second degree,
260. Excusable homicide defined,..
261. Justifiable homicide by public officers,
262. Justifiable homicide by other persons, .
CHAPTER III.
Page.
87
88
88
88
MAIMING.
SECTION 263. Maiming another person defined,.
264. Maiming of one's self to escape performance of a duty,
265. Maiming one's self to obtain alms,.
266. What injury may constitute maiming,.
267. What disfigurement may constitute maiming,
268. Designing to maim, &c.,.
269. Premeditated design,..
270. Subsequent recovery of injured person, when a defense,
271. Punishment,.
CHAPTER IV.
SECTION 272. Kidnapping defined,.
KIDNAPPING.
273. Effect of consent of injured person,
•
888
89
90
•
91
91
91
92
92
92
•
92
274. Selling services of person of color,.
275. Removing from this state persons held to service in another state,.
276. Penalty imposed on judicial officers,.
CHAPTER V.
93
94
95
95
95
ATTEMPTS TO KILL.
SECTION 277. Administering poison,
96
278. Shooting and assault and battery with deadly weapons,.
279. Other assaults with intent to kill,
97
98
CHAPTER VI.
ROBBERY.
SECTION 280. Robbery defined,.
98
281. How force or fear must be employed,
99
282. Degree of force immaterial,.
99
283. What fear may be an element in robbery,
284. Value of property taken, immaterial,..
285. Taking of property secretly, not robbery,.
99
100
100
286. Two degrees of robbery, . . . .
100
287. Punishment of robbery in first degree,.
100
288. Punishment of robbery in second degree,.
101
289. Punishment of robbery committed by two or more persons,.
101
CONTENTS,
CHAPTER VII.
ASSAULTS WITH INTENT TO COMMIT FELONY OTHER THAN ASSAULTS WITH
INTENT, TO KILL.
SECTION 290. Shooting and assaults with deadly weapons,.
291. Other assaults,.....
292. Administering stupefying drugs,.
CHAPTER VIII.
Page.
101
101
102
DUELS AND CHALLENGES.
SECTION 293. Duel defined,...
102
294. Punishment for fighting a duel,………….
102
295. Incapacity to hold office,.
102
296. Punishment of seconds, aids and surgeons, .
103
297. Punishment for challenges,.
103
298. Challenge defined,.....
103
299. Attempts to induce a challenge,
103
300. Posting for not fighting,
103
301. Leaving the state with intent to evade laws against dueling,
104
302. Where such person may be indicted and tried,.
104
303. Witness' privilege,.
·
104
CHAPTER IX.
ASSAULT AND BATTERY.
SECTION 304. Assault defined,.
105
305. Battery defined,
106
306. Use of force or violence declared not unlawful in certain cases,
307. Punishment of assault or assault and battery,..
106
108
308. Assaults with dangerous weapons,.
108
CHAPTER X.
LIBEL.
SECTION 309. Libel defined,..
310. Libel a misdemeanor,.
311. Malice presumed,
312. Truth may be given in evidence,.
•
313. Publication defined,.
314. Liability of editors and others,.
109
109
110
110
110
110
110
111
111
"
111
315. Publishing a true report of public official proceedings privileged, . .
316. Extent of the privilege,.....
317. Other privileged commnnications,
318. Threatening to publish a libel,..
·
CONTENTS
xli
TITLE X.
OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DECENCY AND
+
GOOD MORALS.
CHAPTER I. Rape, abduction, carnal abuse of children, and seduction,.
II. Abandonment and neglect of children,.
III. Abortions and concealing death of infant,
IV. Child stealing, .
V. Bigamy, incest and the crime against nature,
·
VI. Violating sepulture and the remains of the dead,
VII. Indecent exposures, obscene exhibitions, books and prints,
and disorderly houses,
VIII. Lotteries,
IX. Gaming,
X. Pawnbrokers,
Page.
112
121
122
123
124
129
134
137
142
148
CHAPTER I.
RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION.
SECTION 319. Rape defined,
320. When physical ability must be proved,.
321. Penetration sufficient,
112
116
116
322. Rape in the first degree defined,.
117
323. Rape in the second degree defined,
117
324. Punishment of rape in the first degree,.
117
325. Punishment of rape in the second degree,
117
326. Compelling woman to marry,
117
327. Taking a woman with intent to compel her to marry or to be defiled, 118
328. Seduction for the purposes of prostitution, .
118
..
329. Abduction,.
118
330. Seduction under promise of marriage,
120
121
331. Subsequent marriage a defense,
CHAPTER II.
ABANDONMENT AND NEGLECT OF CHILDREN.
SECTION 332. Deserting child,...
333. Omitting to provide child with necessaries,.
CHAPTER III.
ABORTIONS AND CONCEALING DEATH OF INFANT.
SECTION 334. Administering drugs with intent to procure miscarriage,
335. Submitting to attempt to procure a miscarriage,
336. Concealing still birth or death of infant,
121
121
122
•
122
123
!
xlii
CONTENTS.
CHAPTER IV.
CHILD STEALING.
SECTION 337. Definition and punishment of child stealing,.
CHAPTER V.
BIGAMY, INCEST, AND THE CRIME AGAINST NATURE.
SECTION 338. Bigamy defined,..
339. Exceptions,
340. Punishment of bigamy,
341. Other unlawful marriages,
•
342. Incest,
343. Crime against nature,.
344. Penetration sufficient,.
Page.
123
124
126
127
128
128
128
129
CHAPTER VI.
VIOLATING SEPULTURE AND THE REMAINS OF THE dead.
SECTION 345. Right to direct disposal of one's own body after death,
346. Duty of burial,.
347. Burial in other states,.
348. Dissection, when allowed,
349. Unlawful dissection a misdemeanor,
129
129
130
130
130
350. Remains after dissection must be buried,
351. Dead limb or member of a human body,
352. Who are charged with duty of burial,
130
•
130
131
353. Punishment for omitting to bury,
131
354. Who entitled to the custody of a body,
131
355. Unlawful removal of or interference with the bodies of the dead,.. 132
356. Purchasing corpses forbidden,.
133
357. Unlawful interference with places of burial,
133
358. Removal from one burial place to another,
133
359. Arresting or attaching a dead body,..
360. Disturbing funerals,
361. Defacing tombs, monuments, &c.,
133
134
134
•
362. Unlawful dissection,
134
CHAPTER VII.
INDECENT EXPOSURES, OBSCENE EXHIBITIONS, BOOKS AND PRINTS, AND
BAWDY AND OTHER DISORDERLY HOUSES.
SECTION 363. Indecent exposures, exhibitions, pictures, &c.,
364. Seizure of indecent articles authorized,
365. Their character to be summarily determined,
366. Their destruction,
134
135
136
136
CONTENTS.
xliii
SECTION 367. Keeping bawdy house,.
368. Keeping disorderly housés,.
369. Letting buildings for unlawful purposes,
CHAPTER VIII.
LOTTERIES.
SECTION 370. "Lottery" defined, .
371. Lottery declared a public nuisance,.
372. Setting up lotteries,.
373. Selling lottery tickets,
374. Buying lottery tickets,.
375. Advertising lotteries,.
Page.
136
136
136
137
138
138
139
139
139
378. Advertising lottery offices,.
376. Offering property for disposal dependent upon the drawing of any
lottery,
•
377. Lottery offices,.
379. Insuring lottery tickets, &c.,.
139
140
140
140
380. Advertising offers to insure lottery tickets,.
141
381. Property offered for disposal in lotteries forfeited,
141
382. Letting building for lottery purposes,.
141
383. Lotteries out of this state,..
141
384. Advertisements by persons out of the state,.
141
CHAPTER IX.
GAMING.
SECTION 385. Keeping gambling apparatus in certain places,.
386. Punishment,.
142
143
387. Gambling apparatus declared a nuisance,
143
388. Winning at play by fraudulent means,.
143
389. Exacting payment of money won at play,..
143
390. Winning or losing upwards of twenty-five dollars,
144
•
391. Witness' privilege,.
•144
392. Keeping gambling establishments, or letting places for gambling
purposes,.....
145
393. Keeping gambling tables, promoting prohibited games, &c., pro-
hibited,.
145
394. Seizure of gambling implements authorized,.
146
395. Such implements to be destroyed or delivered to district attorney,. 146
396. Such implements to be destroyed upon conviction,.
146
397. Persuading another person to visit gambling places,
147
398. Certain officers directed to prosecute offenses under this chapter,.
399. Duty of masters to suppress gambling on board their vessels,..
400. Racing of animals for a stake,...
147
•
147
147
xliv
CONTENTS.
CHAPTER X.
PAWNBROKERS.
Page.
SECTION 401, Pawnbroking without a license,.
148
402. Refusing to exbibit stolen goods to owner,.
148
t
403 Selling before time to redeem has expired and refusing to disclose
particulars of sale,....
148
TITLE XI.
OF OTHER INJURIES TO PERSONS.
SECTION 404. Acts of intoxicated physicians,.
405. Willfully poisoning food, &c.,.
406. Overloading passenger vessel,.
407. Mismanagement of steamboats,.
408. Mismanagement of steam boilers,
409. Fictitious copartnership names,.
149
149
•
150
150
150
150
410. Counterfeiting trade marks, . .
151
411. Keeping dies, &c., with intent to counterfeit trade marks,.
151
412. Selling goods which bear counterfeit trade marks,
152
413. Colorable imitations of trade marks,.
152
414. "Trade marks" defined,.
153
.
415. "Goods " defined,.
153
416. "Affixing" defined,.
153
417. Refilling or selling mineral water bottles,.
418. Keeping such bottles with intent to refill or sell them,.
419. Search for bottles kept in violation of law authorized,.
420. Defacing marks upon wrecked property,
421. Defacing marks upon logs or lumber,
•
422. Officer unlawfully detaining wrecked property,.
153
154
154
155
155
155
423. Fraud in affairs of limited partnership,.
155
424. Solemnizing unlawful marriages, .
155
425. Unlawful confinement of idiots, insane persons, &c.,
156
426. Taking usury,.
156
427. Reconfining persons discharged upon writ of deliverance,.
428. Concealing persons entitled to writ of deliverance,.
429. Inn-keepers and carriers refusing to receive goods and passengers,
156
•
156
•
157
TITLE XII.
OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFETY.
SECTION 430. "Public nuisance" defined,
158.
431. Unequal damage,...
162
432. Maintaining a nuisance a misdemeanor,
162
433. Keeping gunpowder unlawfully,
162
434. Throwing gas tar into public waters,
162
435. Violations of quarantine laws, by master of vessel,.
163
CONTENTS.
.xly
SECTION 436. Giving false information relative to vessel, or permitting persons to
Page.
land before visit of health officers,.
163
437. Landing from vessel before visit of health officers,.
164
438. Going on board vessel at quarantine grounds, or entering quarantine
grounds without leave,.
164
439. Violating quarantine regulations,
164
440. Obstructing health officer in performance of his duty,
165
441. Willful violation of health laws,
165
•
442. Unlicensed piloting,
165
443. Coasting steamer excepted,
165
444. Acting as port-warden without authority,
. 165
445. Apothecary omitting to label drugs or labeling them wrongly,
166
weight, with intent to increase weight,
452. Disposing of tainted food,
446. Apothecary selling poison without recording the sale,.
447. Refusing to exhibit record,.
448. Selling poison without label,
•
449. Omitting to mark name upon package of hay,
450. Putting extraneous substances in packages of goods usually sold by
451. Adulterating food, drugs, liquors, &c.,.
167
168
168
169
169
169
170
•
•
453. Making or keeping slung shot,
454. Carrying upon the person, or using or attempting to use slung shot, 170
170
455. Carrying concealed weapons, .
456. Negligence in respect to fires,
457. Refusing to assist in extinguishing fire in the woods,.
458. Obstructing attempts to extinguish fires,..
459. Maintaining ferry without authority of law,
•
460. Violating condition of recognizance to keep a ferry,
461. Engineer omitting to ring bell or sound whistle when locomotive
crosses highway,.
...
170
171
171
171
171
•
171
•
172
•
462. Intoxication of engineers, conductors and drivers upon railroads, 172
463. Violations of duty by officers, agents or servants of railroad com-
panies,
464. Duty of guarding ice cuttings,
172
172
465. How long such guards must be maintained,
172
•
466. Violation of duty to maintain guards around ice cuttings a misde-
meanor,
172
•
467. Using net or weir unlawfully in Hudson river,..
173
468. Exposing person affected with a contagious disease, in a public place, 173
469. Frauds practised to affect the market price,
173
470. Publishing false statements in newspapers,
173
•
471. Eavesdropping,
173
472. Racing upon highways,
174
xlvi
CONTENTS.
TITLE XIII.
OF CRIMES AGAINST THE PUBLIC PEACE.
SECTION 473. Disturbing lawful meetings,
474. "Riot" defined,
475. Punishment of riot,
476. "Rout" defined,
477. Unlawful assembly,
478. Assembly of persons disguised,
479. Punishment of rout and unlawful assembly,
•
Page.
175
175
175
176
176
176
176
176
480. Allowing masquerades to be held in places of public resort,
481. Remaining present at place of riot, &c., after warning to disperse,.. 177
482. Remaining present at place of a meeting, originally lawful, after it
has adopted an unlawful purpose,
177
483. Refusing to obey a lawful command to assist in arresting rioter,.
484. Combinations to resist execution of process,
177
177
•
485. Prize fights,
178
486. Challenges to engage in prize fights,.
178
487. What is a challenge,.
178
488. Leaving the state to engage in prize fights,
178
489. Place of trial,
178
•
490. Special duty of peace officers with respect to prize fights,
179
491. Neglect of duty by peace officers, a misdemeanor,.
179
492. Forcible entry and detainer,
179
493. Returning to take possession of lands after being removed by legal
process,
179
494. Unlawful intrusions upon lands of another,
179
495. Discharging fire-arms in public places, .
180
496. Witness' privilege,
180
TITLE XIV.
OF CRIMES AGAINST THE REVENUE AND PROPERTY OF THE STATE.
SECTION 497. Embezzlements and falsification of accounts by public officers,
181
498. Other violations of law, ....
182
499. Officer authorized to make any sale, lease or contract, becoming
interested under it,
182
500. County clerks omitting to publish statement required by law,
501. Obstructing officer in collecting revenue,.
182
•
182
502. Selling goods by auction without filing the bond required by the
Political Code,. . . .
182
503. Auctioneer accepting appointment as auctioneer in another state,
or selling in another state,
183
504. Auctioneer having two places of business,
505. Auctioneer selling goods at other than his regular place of business, 183
506. Punishment for violating last two sections,.
507. Selling goods without due advertisement,
183
•
183
183
•
CONTENTS.
xlvii
Page.
SECTION 508. What sales must be made by day,
184
509. Auctioneer omitting to render account,
184
510. Auctioneer committing fraud or attempting to evade the provisions
of the Political Code,.
184
511. Delivering false bill of lading to canal collector,.
185
512. Weighmaster making false entry of weight of canal boat, .
185
513. Canal officer concealing frauds upon the revenue,
185
514. Willful injuries to the canals, 、
185
515. Drawing off water from canals,
186
516. Canal officer accepting bribe to allow water to be drawn off from
canals,
•
186
517. Fraudulent appropriation of lost treasure or waived property,..
518. Injuries to the salt works, .
186
186
519. Seizing military stores belonging to the state,.
187
520. Making false statement in reference to taxes,.
187
TITLE XV.
OF CRIMES AGAINST PROPERTY.
CHAPTER
I. Arson,....
II. Burglary and house-breaking,
III. Forgery and counterfeiting, .
IV. Larceny,
V. Embezzlement,
•
VI. Extortion,..
VII. False personation, and cheats,
X. False weights and measures,.
188
193
198
210
217
219
222
VIII. Fraudulently fitting out and destroying ships and vessels,.. 227
IX. Fraudulent destruction of property insured,
XI. Fraudulent insolvencies by individuals,...
•
XII. Fraudulent insolvencies by corporations, and other frauds in
their management,
XIII. Frauds in the sale of passage tickets,
228
229
230
241
249
XIV. Frauds relative to documents of title to merchandise,...
XV. Malicious injuries to railroads, highways, bridges and tele-
254
graphs,
258
CHAPTER I.
ARSON.
SECTION 521. "Arson" defined,.
189
522. "Building" defined,.
523. "Inhabited building" defined,
524. "Night time" defined,.
525. "Burning" defined,.
189
189
189
189
526. Ownership of the building
190
• •
527. Variance in proof ownership,.
190
xlviii
CONTENTS:
Page.
SECTION 528. What constitutes malice,...
190
529. Intent to destroy the building, requisite, .
191
530. Contiguous buildings,.
191
531. Degrees of arson,.
191
532. First degree defined,.
191
533. Appurtenances to buildings,
534. Burning in day time, when arson in second degree,.
535. Burning in night time, when arson in second degree,
536. Burning in day time, when arson in third degree,
537. Burning in night time, when arson in third degree,.
538. Fourth degree defined,.
191
•
192
192
192
192
192
539. Punishment of arson,
192
CHAPTER II.
BURGLARY AND HOUSEBREAKING.
SECTION 540. Burglary in first degree defined,. .
194
541. Breaking into dwelling houses in the day time, burglary in second
degree,.
195
1
542. Breaking inner door in night time, burglary in second degree,
543. Such breaking by person lawfully in the house, burglary in second
degree,.
195
195
544. Breaking into dwelling house, when burglary in third degree, . . . : .
545. Other burglaries of the third degree,.
195
195
546. Breaking and entering dwelling, when burglary in fourth degree,..
547. Breaking out of dwelling house, burglary in fourth degree,...
548. Punishment of burglary,. . .
549. Having possession of burglar's implement,.
550. Entering buildings other than dwelling houses,
551. "Dwelling house" defined, .
196
196
197
197
197
197
•
552. "Night time "defined,
198
CHAPTER III.
FORGERY AND COUNTERFEITING.
SECTION 553. Forgery of wills, conveyances, certificates of acknowledgment, &c., 199
554. Forgery of public securities,.
555. Forgery of public and corporate seals,.
199
200
556. Forgery of records and official returns,.
200
557. Making false entries in records of returns,.
201
558. False certificates of acknowledgment or proof,
201
559. Making false bank note plates, &c.,..
201
560. What plate may be deemed an imitation of a genuine plate,.
202
561. Uttering forged evidences of debt,.....
202
562. Having possession of certain forged evidences of debt with intent
to utter them, . . .
202
563. Having possession of other forged instruments,
203
1
CONTENTS
xlix
SECTION 564. Issuing spurious certificates of stock in corporation,
565. Re-issuing canceled certificates of stock,
566. Issuing false evidences of debt of corporations,
·
Page.
203
203
204
567. Counterfeiting coin to be circulated within this state,
568. Counterfeiting coin to be exported,.
204
• •
205
569. Forging process of court, and other instruments,
205
570. Making false entries in accounts of certain public officers,
571. Forging passage tickets,
205
•
206
572. Forging United States stamps,
573. Making false entries in books of accounts of corporations, .
574. Clerks and others making false entries in employer's books.
575. Having possession of counterfeit coin, with intent to utter,.
576. Punishment of forgery,
206
206
207
207
207
577. Uttering forged instrument, or coin, forgery in same degree as
making it,
208
578. Exception, when such instrument or coin was received in good faith, 208
,579. Fraudulently signing one's own name as that of another,
208
580. Fraudulently indorsing one's own name, .
581. Erasures and obiiterations,
209
209
582. "Writing" and "written instruments" defined,
583. Fictitious names of officers of corporations,.
•
209
209
CHAPTER IV.
LARCENY.
SECTION 584. Larceny defined,
•
585. Larceny of lost property,
586. Grand and petit larceny,
587. Grand larceny defined,.
588. Petit larceny,.
•
589. Punishment of grand larceny,
590. Punishment of petit larceny,
•
591. Of grand larceny committed in dwelling house or vessel,..
592. Of grand larceny committed in the night time from the person,
593. Larceny of written instrument,
210
212
213
213
213
213
214
214
414
•
•
214
594. Value of passage ticket,
215
595. Securities completed, but not yet issued, declared property,
596. Severing and removing a part of the realty declared larceny,
215
215
597. Stealing wrecked goods, &c.,
216
•
598. Receiving stolen property,
216
599. Fraudulent consumption of illuminating gas,
216
217
600. Larceny committed out of this state,.
G
1
CONTENTS.
CHAPTER V.
EMBEZZLEMENT.
Page.
SECTION 601. "Embezzlement" defined,,. . . .
602. When officer, &c., of any association, guilty of embezzlement,..
603. When carrier, or other person, having property for transportation
for hire, guilty of embezzlement,
604. When trustee, banker, &c., &c., guilty of embezzlement,
218
218
218
218
605. When bailee guilty of embezzlement,
218
606. When clerk or servant guilty of embezzlement, .
219
607. Distinct act of taking, not necessary to constitute embezzlement, 219
• •
608. Evidence of debt undelivered, may be subject of embezzlement,
219
609. Claim of title a ground of defense,
219
610. Intent to restore the property is no defense,.
219
611. But actual restoration is a ground for mitigation of punishment,
612. Punishment for embezzlement,
220
220
•
CHAPTER VI.
EXTORTION.
SECTION 613. "Extortion" defined. ..
220
614. What threats may constitute extortion,.
220
615. Punishment of extortion in certain cases,.
221
616. Punishment of extortion committed under color of official right,
221
617. Obtaining signature by means of threats,
221
618. Sending threatening letters,
221
619. Attempts to extort money, or property, by verbal threats,..
222
A
CHAPTER VII.
FALSE PERSONATION, AND CHEATS.
SECTION 620. Falsely personating another,
222
621. Receiving property in false character,
233
622. Personating officers, firemen, and other persons,
223
623. Obtaining property by false pretenses,
223
•
624. Obtaining property for charitable purposes,
625. Obtaining negotiable evidence of debt by false pretenses,
626. Using false check or order for payment of money,
225
226
226
627. Mock auctions,..
226
CHAPTER VIII.
FRAUDULENTLY FITTING OUT AND DESTROYING VESSELS.
SECTION 628. Captain, or other officer, willfully destroying vessel, &c,,
629. Other persons willfully destroying vessel, &c.,.
•
630. Fitting out or lading any vessel with intent to wreck the same,
631. Making false manifest, &c.,
227
227
227
227
1
CONTENTS.
11
CHAPTER IX.
FRAUDULENT DESTRUCTION OF PROPERTY INSURED.
SECTION 632. Destroying property insured,
633. Presenting false proofs of loss in support of claim upon policy of
J
insurance,
CHAPTER X.
Page.
228
228
FALSE WEIGHTS AND MEASURES.
SECTION 634. Using false weights or measures,
229
•
635. Selling provisions by false weight or measure,
229
·
636. Keeping false weights,.
229
637. False weights and measures authorized to be seized,
229
638. May be tested by committing magistrate, and destroyed or delivered
to district attorney,..
229
639. Shall be destroyed after conviction of offender,
230
640. Stamping false weight or tare, on casks or packages,
230
CHAPTER XI.
FRAUDULENT INSOLVENCIES BY INDIVIDUALS.
SECTION 641. Fraudulent conveyances,
230
•
642. Fraudulent removal of property to prevent levy,
231
643. Making assignments with preferences by insolvents, prohibited,
644. Frauds in procuring discharge in insolvency,
231
240
CHAPTER XII.
FRAUDULENT INSOLVENCIES BY CORPORATIONS, AND OTHER FRAUDS IN
THEIR MANAGEMENT.
SECTION 645. Frauds in subscriptions for stock of corporation,
241
646. Frauds in procuring organization of corporation or increase of capital, 242
647. Unauthorized use of names in prospectuses, &c.,
648. Misconduct of directors of stock corporations,
649. Misconduct of directors of banking corporations,.
650. Loans made in violation of last section, not invalid,
242
•
242
243
•
244
651. Sale or hypothecation of bank notes by officer, &c.,
244
244
652. Officer of bank putting excessive number of its notes in circulation,
653. Officer or agent of banking corporation making guarantee or indorse-
ment in its behalf, in certain cases,
654. Bank officer overdrawing his account,
655. Receiving deposits in insolvent banks,
•
•
656. Frauds in keeping accounts in books of corporations,
657. Officer of corporation publishing false reports of its condition,...
658. Officer of corporation refusing to permit an inspection of its books,
659. Insolvencies of corporations deemed fraudulent, when,
245
245
245
245
246
246
246
660. Directors participating in fraudulent insolvency, how punishable,.. 247
lii
CONTENTS.
Page.
its available means,
SECTION 661. Violation of duty of directors of moneyed corporations,.
662. Officer of railroad company contracting debt in its behalf, exceeding
663. Debt contracted in violation of last section, not invalid,
247
247
247
664. Director of corporation presumed to have knowledge of its affairs,. 247
665. Director present at meeting, when presumed to have assented to
proceedings,
248
•
666. Director absent from meeting, when presumed to have assented to
proceedings, ....
667. Foreign corporations,
668. "Director" defined,..
CHAPTER XIII.
248
248
248
FRAUDS IN THE SALE OF PASSAGE TICKETS.
SECTION 669. Sale of passage tickets on vessels and railroads, forbidden, except
by agents specially authorized,
249
670. Sales by authorized agents restricted,
250
671. Unauthorized persons forbidden to sell certificates, receipts, &c., for
the purpose of procuring tickets,
250
672. Punishment for violation of the preceding sections,
251
673. Conspiring to sell passage tickets in violation of law,..
251
674. Conspirators may be indicted, notwithstanding object of conspiracy
has been accomplished, .
251
675. Offices kept for unlawful sale of passage tickets, declared disorderly
houses,
251
676. Owners, pursers, &c., allowed to sell tickets, .
252
677. Station masters, conductors, &c., allowed to sell tickets,
252
- •
678. What must be stated in passage tickets,
253
679. Sale of tickets not filled out as required in last section, a felony,
253
680. Requisites of indictment,
253
681. "Company" defined,.
253
682. Foreign railroad companies,
253
•
CHAPTER XIV.
FRAUDULENT ISSUE OF DOCUMENTS OF TITLE TO MERCHANDISE.
SECTION 683. Issuing fictitious bills of lading, &c.,
684. Issuing fictitious warehouse receipts,
254
254
•
685. Erroneous bills of lading or receipts, issued in good faith, excepted, 255
686. Duplicate receipts must be marked "Duplicate,"
255
687. Selling, hypothecating or pledging property received for transporta-
tion or storage,
256
688. Bill of lading or receipt issued by warehousemen, must be canceled
on redelivery of the property,. . . .
256
689. Property demanded by process of law,
256
1
CONTENTS.
liii
CHAPTER XV.
MALICIOUS INJURIES TO RAILROADS, HIGHWAYS, BRIDGES AND TELE-
SECTION 690. Injuries to railroads,.
GRAPHS.
691. Cases where death ensues,
692. Injuries to highways, private ways and bridges,
693. Injuries to toll houses and turnpike gates,
694. Injuries to mile boards and guide posts,
257
257
257
257
257
695. Injuring telegraph line, or intercepting message, a misdemeanor, 258
•
TITLE XVI.
OF MALICIOUS MISCHIEF.
SECTION 696. Malicious mischief, in general, defined,
•
259
697. Specifications in following sections, not restrictive of last section,.. 259
698. Poisoning cattle,
259
699. Killing, maiming or torturing animals,
•
700. Instigating fights between animals,
259
259
701. Keeping houses, pits, &c., for fights between animals,
259
702. Wounding or trapping birds, or destroying birds' nests in cemeteries, 260
703. Burning buildings and other property not the subject of arson,
704. Breaking or injuring property in houses of worship,
260
•
260
705. Using gunpowder, &c., in destroying or injuring any building,
706. Endangering human life by placing gunpowder, &c., near building,
707. Malicious injuries to freeholds,
708. Injuries to standing crops, &c.,
260
261
261
262
709. Removing, defacing or altering landmarks,
262
•
710. Interfering with piers, dams, &c.,
263
711. Destroying or injuring dams, &c.,.
263
712. Removing or injuring piles used in sea or river embankments, &c., 263
713. Removing any beacon in New York harbor,..
264
714. Masking or removing signal lights,.
264.
715. Injuring or destroying written instruments,
264
716. Destroying or delaying election returns,
264
717. Opening or publishing sealed letters,.
264
718. Disclosing contents of telegraphic dispatch,
265
•
719. Concealing telegraphic dispatch,
265
720. Injuring works of art or improvements in any city or village,
721. Destroying works of literature or art, or objects of curiosity in pub-
265
lic libraries, museums, &c.,
722. Breaking or obstructing gas or water pipes or appurtenances, .
265
265
TITLE XVII.
OF MISCELLANEOUS CRIMES.
SECTION 723. Commissioner of excise granting license wrongfully,...
724. Selling liquor to Indians,
•
725. Being intoxicated in public places,
266
266
266
liv
CONTENTS.
SECTION 726. Selling liquor to habitual drunkards,
727. Selling liquor to paupers,.
728. Selling liquor upon Sundays,
•
730. Attorneys forbidden to defend criminal prosecutions carried on by
729. Violation of laws relative to navigation,
·
their partners, or formerly by themselves,.
•
731. Attorneys may defend themselves,..
Page.
267
267
267
267
268
268
732. Fraudulently presenting bills or claims to public officers for payment, 268
733. Intimidating laborers or employers,
•
734. Voting unlawfully at an annual town meeting,
269
269
735. Publishing false messages, &c., of federal or state executive,
736. Acts not expressly forbidden,
270
• ·
271
TITLE XVIII.
GENERAL PROVISIONS.
SECTION 737. Acts made punishable by different provisions of this Code,
738. Acts punishable under foreign law,
739. Foreign conviction or acquittal,
740. Contempts, how punishable,
•
741. Mitigation of punishment in certain cases,
742. Aiding in misdemeanor,..
743. Sending letter, when deemed complete,
744. Omission to perform duty, when punishable,
272
273
273
273
273
273
274
274
745. Attempts to commit crimes, when punishable,.
746. Attempts to commit crimes, how punishable,.
747. Restriction upon the preceding sections,
274
274
275
748. Second offenses, how punished, after conviction of former offense,. 275
749. Attempts to conceal death of child, how punished after conviction
of former attempt,.
276
750. Second offenses, how punished, after conviction of petit larceny, or
of an attempt to commit a state prison offense,
276
751. Foreign conviction for foreign offense, .
277
752. Second term of imprisonment, when to commence,
753. Imprisonment for life,
277
278
754. Sentence to state prison, how to be limited,
•
755. Juvenile offenders may be sent to penitentiary,
278
278
•
756. Fine may be added to imprisonment,
757. Civil rights of convict suspended,.
279
279
758. Civil death,....
279
759. Person of convict protected,
279
·
760. Forfeitures,
279
761. Witness' testimony may be read against him on prosecution for
perjury,
279
762. Certain terms defined, in the senses in which they are used in this
Code,
280
763. "Willfully" defined,..
280
764. "Neglect," "negligence," &c., defined,
280
765. "Corruptly" defined,
280
CONTENTS.
ly
SECTION 766. "Malice" and "maliciously" defined,
767. "Knowingly" defined,.
768. "Bribe" defined,.
769. "Vessel" defined,.
770. "Peace officer" defined,.
771. "Magistrate " defined,
772. "Signature" defined,
773. "Writing" defined,
774. "Real property " defined,.
•
775. "Personal property" defined,
776. "Property" defined,.
777. "Person" defined,
•
778. "Person," when used to denote owner of property,
779. Singular includes plural,
780. Masculine word includes feminine, &c.,
781. Present tense, how used,..
782. What intent to defraud is sufficient,.
783. Civil remedies preserved,.
784. Proceedings to impeach or remove officers and others, preserved,..
785. Military punishments and punishments for contempt and certain
special proceedings preserved,
786. Certain statutes specified as continuing in force,
Page-
- 280
280
281
281
281
281
281
281
281
281
282
282
282
282
282
282
282
283
283
283
283
TITLE XIX.
OF THE GOVERNMENT AND DISCIPLINE OF STATE PRISONS AND COUNTY
JAILS, AND OF THE CONDUCT AND TREATMENT OF PRISONERS
THEREIN.
CHAPTER I. Designation of the different state prisons and county jails,
and general regulations respecting them, and the custody
and removal of prisoners,
288
II. Inspectors of state prisons,
301
III. General provisions relative to officers of the various state
prisons,.
310
IV. The wardens,
319
•
V. The matron of the female department of the Sing Sing
prison, and assistant matrons,
335
VI. The clerks, .
337
VII. The keepers,
340
VIII. The physicians,
343
IX. The chaplains, .
345
X. The instructors and instructress,
347
XI. The guards,
348
XII. The military companies at Sing Sing and Auburn,
349
XIII. The fire company at Auburn,
353
XIV. The custody, conduct and discipline of convicts,
354
XV. The employment of convicts,
360
XVI. Commutation of sentences,
371
Ivi
CONTENTS.
CHAPTER XVII. The custody, conduct, discipline and employment of
prisoners in county jails,
XVIII. Inspection of county jails,
XIX. Custody of insane prisoners,
XX. General provisions applicable equally to state prisons and
county jails, ...
Page.
382
388
392
398
CHAPTER I.
DESIGNATION OF THE DIFFERENT STATE PRISONS AND COUNTY JAILS,
AND GENERAL REGULATIONS RESPECTING THEM, AND THE CUSTODY
AND REMOVAL OF PRISONERS.
SECTION 787. Designation of the state prisons,
289
788. Designation of the county jails,
289
789. Convicts, how to be sentenced,.
290
790. Female convicts,
290
791. Reports of male and female departments,
792. Compensation for transportion, ..
290
•
290
793. Account to be rendered on delivering convicts,
794. How it is to be certified,
291
291
795. And how paid,
292
796. What convicts must be transported together,
797. Removal of convicts where number is excessive,.
292
292
798. Expenses of such removal,
799. Manner of removal,
293
•
293
800. Intercourse with other persons prohibited,
293
•
801. Removal of convicts under seventeen,
293
802. Manner of such removal,.
294
803. Expenses of such removal,
•
804. Removal of convicts in case of fire,.
805. Removal of convicts in case of pestilence,
806. Removal of convicts in case of riot, &c.,
807. Solitary cells to be erected, .
294
294
•
295
295
295
808. Lands at Clinton prison,..
809. Rooms required in county jails,
296
297
•
810. Sheriff may remove prisoners in county jails,
298
811. Removal in case of fire,. .
812. Removal in case of pestilence,.
813. Removal in case of riot, &c.,..
298
298
299
814. Place of removal declared the county jail for the time being,
815. This title applicable to United States prisoners,
299
• •
299
• •
816. United States prisoners to be received into county jails,
817. United States convicts to be received into state prisons and county
299
jails, .....
300
818. Punishment for escapes,.
300
819. Punishment of officers for violation of duty,
301
CONTENTS.
lvit
CHAPTER II.
INSPECTORS OF STATE PRISONS.
Page.
SECTION 820. Inspectors, how chosen,..
302
821. How removed,..
302
822. When to enter upon their duties,.
823. To take oath of office,
824. Election of president,.
302
302
303
825. Each inspector to take special charge of one prison,
303
826. Visitation of prisons,..
304
827. What matters must be inquired of by the inspectors,.
828. They may require reports, ..
304
•
301
829. They may make regulations for the prisons,
830. And for the female department of the Sing Sing prison,.
831. They must inquire into alleged improper conduct,
832. They must keep minutes of their proceedings,.
833. They must make an annual report,..
304
• •
305
305
305
·
305
834. They must furnish abstracts of returns made to them,
306
835. They must cause orders, &c., adopted by them, to be recorded,.
306
836. They may employ artisans from abroad, . .
306
837. They must prescribe the provisions for convicts,.
838. They must transmit warden's account to comptroller,
306
306
• ·
839. They must cause property of the state to be valued,
840. Their duty in appointments,.
307
307
841. They must keep armories in repair,.
307
842. Power of president to summon witnesses,
307
843. Power of inspectors to administer oaths,
844. Duties of individual inspectors,
308
309
845. Examination of books of storekeepers,
309
•
846. Inspectors can hold no other prison office or contract,
310
CHAPTER III.
GENERAL PROVISIONS RELATIVE TO OFFICERS OF THE VARIOUS STATE
PRISONS.
SECTION 847. Designation of officers of the state prisons,
848. Who are not eligible to office at the state prisons,
310
313
849. Inspectors may make temporary appointments to fill vacancies,
313
850. Appointments must be entered in journal, . .
314
851. Oath of office,
314
852. Official bond,
315
853. Bond, when to be filed,
315
• •
854. Salaries,
315
855. How paid,
317
856. Traveling expenses to be audited and allowed,
317
•
•
857. Officers to support themselves,
317
858. Officers caunot give evidence of debt,
317
859. Official reports must be verified,
318
860. Time of making reports,
318
861. Officers not to be interested in contracts, .
318
H
Iviii
CONTENTS.
CHAPTER IV.
THE WARDENS.
SECTION 862. Warden must reside at the prison,
863: Must attend to fiscal concerns of prison,
864. May make contracts,.
•
865. Must superintend manufactures, &c.,
866. Must purchase requisite materials,
•
Page.
320
321
322
322
322
867. Must take bills and affidavits of all purchases made for the prison, 322
868. Must collect debts due the prison,
323
869. Must take charge of moneys and effects of convicts,.
323
870. Must provide discharged convicts with certain sums of money,
324
• •
871. May draw money from the treasury,
324
872. May draw money from the literature fund,
324
873. Must furnish bibles and hymn books,.
325
874. Must deposit moneys received, in bank,.
325
875. Must keep regular accounts,
326
876. Must report estimates in advance of incurring expenses,
326
877. Must render account to the inspectors,
327
878. Must make monthly report to the comptroller of receipts and
expenditures.
327
879. Must file copies of contracts, .
328
880. Must advertise useless property for sale,.
329
•
881. Must pay sheriff for transporting convicts,
329
882. Must superintend the prisons,
329
883. Must keep a time book,
329
884. Must instruct the keepers,
330
885. Must daily examine the prison,
330
886. Must make rules for the subordinate officers,
330
887. Must keep a daily journal,
330
888. May suspend subordinate officers,
331
··
889. Must receive certain convicts,.
331
890. Must admit the inspectors to visit the prison,
331
•
891. Must make a monthly report to the inspectors,
331
892. Must communicate discovery of insanity of offenders to the governor, 332
893. Requisites of the warden's monthly accounts,
332
894. His accounts must be audited by the comptroller,
332
895. Penalty for neglect to make statement,
333
896. Warden liable to punishment for neglect or breach of duty,
897. Farm at Sing Sing,
333
333
898. Receipts of warden at Sing Sing,
333
•
899. Warden at Clintou may draw arms from state arsenal,
900. May sell ore,
334
334
901. May appropriate waters upon the prison lands,
334
CONTENTS.
lix
CHAPTER V.
THE MATRON OF THE FEMALE DEPARTMENT OF THE SING SING PRISON,
AND ASSISTANT MATRONS.
SECTION 902. Matron of the female department at Sing Sing must superintend the
department,
•
903. Must instruct the assistant matrons,
904. Must examine, daily, the state of the department,
905. Must make rules for the assistant matrons,.
•
906. Must keep a daily journal of the department,.
•
907. Must furnish a monthly account to the inspector in charge,
Page.
335
335
335
336
336
336
CHAPTER VI.
CLERKS.
SECTION 908. Clerk must attend daily at prison,
909. Must act as clerk of the inspectors,
337
337
910. Must keep a register of convicts,
337
911. Must keep all the books and accounts,
'338
912. Must keep a separate account of articles received from convicts,... 338
913. Must enter bills received by warden,.
338
914. Must examine articles purchased by the warden and compare them
with the bill, ...
338
915. Must write for the warden and inspectors,
339
916. Must have the custody of books and papers,
339
917. Must preserve a set of all official reports,
339
•
318. Must make an annual report to secretary of state,
919. Must make an annual report to inspectors,
920. May take affidavits,
339
•
339
•
340
CHAPTER VII.
THE KEEPERS.
SECTION 921. Keepers must obey directions of warden,
922. Must preserve proper discipline,
923. Store keeper at Sing Sing must take charge of goods purchased,..
924. Must make out monthly statement for inspector in charge,
925. Must compare bills taken for goods purchased,
926. Must keep account of goods sold by the warden, &c.,
•
927. General duties of kitchen keeper,
340
341
341
342
342
342
342
928. Kitchen keepers at Auburn and Clinton must act as store keepers, 343
929. Duties of hospital and hall keepers,
•
CHAPTER VIII.
THE PHYSICIANS.
SECTION 930. Physician must attend constantly at the prison,
931. Must take charge of hospital,
932. Must attend the sick,..
343
343
344
344
Ex
CONTENTS:
Page.
SECTION 933. Must examine the cells of convicts weekly,
344
934. Must make a monthly report to the inspectors, of patients in hospi-
tal,..
344
935. And of sick convicts not received into the hospital,..
344
936. Must examine the provisions furnished,
344
937. Must keep a daily record of admissions to the hospital,
938. Must make a yearly report to the inspectors,
345
345
939. Inspectors may require physicians at Sing Sing and Clinton to re-
side in the prison,
345
•
CHAPTER IX.
THE CHAPLAINS.
SECTION 940. Chaplain must perform religious services,.
346
941. Must visit convicts in their cells,
346
942. Must see that books are furnished,.
346
943. Must take charge of library,..
346
944. Must visit the sick,.
346
945. Must make an annual report to the inspectors,.
946. Must make a quarterly report,.
346
347
CHAPTER X.
THE INSTRUCTORS AND INSTRUCTRESS.
SECTION 947. Duty of instructors and instructress,
948. Instruction, when to be given, .
CHAPTER XI.
THE GUARDS.
SECTION 949. A guard to be maintained at each prison,
950. Guards to be furnished with arms, &c.,
CHAPTER XII.
THE MILITARY COMPANIES AT SING SING AND AUBURN.
SECTION 951. Two military companies to be organized,
952. Their organization prescribed,.....
953. Arms, &c., to be kept in good order,
•
954. Companies to be always ready for service,
955. Companies, how formed, and officers, how appointed,.
956. Restriction as to serving as firemen, &c.,
•
•
957. Companies named "Sing Sing Guards" and "Auburn Guards,"
958. Vacancies, how to be filled,.
959. Return of delinquents to be made,
960. Delinquents may be fined,.
• •
347
348
348
348
349
349
350
350
350
350
351
• •
•
351
351
351
1
CONTENTS.
'
Ixt
SECTION 961. Fines, how to be collected,
962. Fines, how to be applied,.
963. Officers may be dismissed for neglect of duty,.
•
964. Service for ten years to exempt from future military duty,...
CHAPTER XIII.
THE FIRE COMPANY AT AUBURN.
SECTION 965. Fire company at Auburn prison,
·
966. To attend on alarm of fire,
967. To attend to the fire engine,
968. Privileges of members of the company,
969. When entitled to discharge,
Page.
352
352
352
352
353
353
353
353
354
CHAPTER XIV.
THE CUSTODY, CONDUCT AND DISCIPLINE OF CONVICTS.
SECTION 970. Certificate of conviction to be delivered with convict,.
971. Convicts to be kept single in cells at night, &c.,
972. Convicts to be provided with food, clothing and bedding,
973. Provisions to be furnished by contract,
974. The articles of food to be prescribed by inspectors,
975. Notice of supplies wanted, to be published,
•
354
355
355
355
355
355
976. Proposals must specify the lowest price,
356
•
977. Contracts must be in writing,
356
978. Provision in case of violence being offered by convicts,
356
979. Restrictions as to inflicting blows on convicts,.
356
980. Certain convicts may be confined in solitary cells,.
357
981. Inspectors to visit such cells,
357
982. Apprehension of escaped convicts,
358
983. Rewards, how to be paid,
358
984. Letters, &c., to convicts must be examined,
358
985. In certain cases of death, a coroner's inquest may be held,
358
986. Bodies of convicts dying at Sing Sing, when to be given for dis-
section,.
359
..
987. The like at Auburn prison,
359
988. Children of female convicts,
359
989. Restriction as to sale of liquors near Clinton prison,...
360
CHAPTER XV.
THE EMPLOYMENT OF CONVICTS.
SECTION 990. Convicts to be kept at hard labor,
361
991. Courts to examine convicts as to their having learned a trade,
992. Convicts not to be permitted to work at any other trade,
993. Trade of convicts who were previously in state prison,
361
361
362
lxii
CONTENTS.
Page.
SECTION 994. Officers not to employ convicts,
362
•
995. Penalty for hiring convicts contrary to law,
362
996. Attorney-general to prosecute in certain cases,
363
997. The warden to let the services of convicts under directions from
board of inspectors,...
363
998.
998. Warden must advertise for proposals and prepare form of contract, 363
999. Sureties of contractor must justify,.
364
1000. Warden must submit proposals to inspectors,
364
•
1001. Inspectors to award contract,
364
1002. Effect of the contract,..
365
1003. What the contract must not contain,
365
1004. What it must contain,.
365
1005. Penalty for bidder's refusal to complete the contract,
1006. Inspectors may advertise anew,
366
366
1007. Contracts for labor of convicts for one year or less,
367
1008. Debt of contractor a lien upon his tools, &c.,
367
1009. Contractor to deposit money with comptroller as security,
1010. Citizen labor not to be employed, except, &c.,
368
368
1011. Clothing for convicts in Clinton prison,..
368
1012. The Sing Sing and Auburn prisons to be credited for clothing,
1013. Purchases made for the Clinton prison to be for cash,
1014. Warden must deposit moneys to the credit of the state,.
1015. Warden of Sing Sing prison may let services of convicts for a term
369
369
369
of years,
370
•
1016. The contract must be in writing,.
370
1017. Services of convicts how to be paid for,
370
CHAPTER XVI.
COMMUTATION OF SENTENCES.
SECTION 1018. Convicts may earn commutation of sentence,
1019. Convicts in the hospital,...
1020. To whom the provisions apply,
371
372
373
373
373
374
•
1021. Warden must notify convicts of the provisions of this chapter,...
1022. Keepers and matrons must keep record of work, and manner of
doing it, and report the same,
1023. Governor may direct deduction from term of imprisonment,
CHAPTER XVII.
THE CUSTODY, CONDUCT, DISCIPLINE AND EMPLOYMENT OF PRISONERS IN
COUNTY JAILS.
SECTION 1024. Application of this chapter,.....
1025. Keepers must receive persons duly committed,
1026. What prisoners must be kept separate,
1027. Male and female prisoners,...
1028. Conversation to be prevented,
•
1029. Prisoners may converse with counsel, &c.,.
382
382
383
383
833
383
1
CONTENTS.
Ixiii
SECTION 1030. Prisoners to be provided with food, clothing and bedding,
1031. To be employed at hard labor,..
Page.
383
384
1032. Convicts may be employed on highways, streets, &c.,
384
1033. When so employed to be chained,.
385
1034. Keepers must provide a bible for each room,
385
1035. Keepers must keep daily record,
385
1036. Keepers must present a calendar to courts,
387
1037. Persons confined but not indicted, when to be discharged,
387
1038. Prisoners when not to be removed,..
387
1039. Prisoners unable to pay fine, how discharged,
388
CHAPTER XVIII.
INSPECTION OF COUNTY JAILS.
SECTION 1040. Inspectors of state prisons to inspect county jails,
1041. Counties to be divided among the inspectors, .
1042. Plan to be submitted to governor, comptroller and attorney-general,
1043. Sheriffs and keepers must admit inspectors into every part, &c.,
1044. Inspector must make report of his examination,.
389
389
390
390
390
1045. Must report defects in the jail,
391
1046. Alterations in plans of county jails, how to be made,
1047. Annual report to be made to the legislature,.
391
•
392
CHAPTER XIX.
CUSTODY OF INSANE PRISONERS.
SECTION 1048. Inspectors may order removal of insane convicts from state prisons, 393
1049. Superintendent of asylum must receive them,
395
1050. When insane convict may be removed to the county of his resi-
dence,
395
1051. Poor officers must receive such convict, .
345
1052. When insane convict may be delivered to relatives,
396
1053. Convicts not to be retained in asylum after expiration of sen-
tence,
396
1054. Except upon examination and order by county judge,
396
1055. Convicts when restored to reason to be transferred to Auburn :
prison,
296
1056. Transfer of certificate,
997
-1857. Pay of physicians,..
397
1058. Inquiry into insanity of prisoners in county jails,
397
CHAPTER XX.
GENERAL PROVISIONS APPLICABLE EQUALLY TO STATE PRISONS AND
COUNTY JAILS.
SECTION 1059. Exemption of officers from jury and militia duty,
399
1060. What punishments are allowed,
399
1061. Spirituous and fermented liquors not to be sold or brought into
prisons,.
399
Ixiv
CONTENTS.
Page.
SECTION 1062. When permits may be granted,...
390
1063. Persons authorized to visit county and state prisons,
1064. Convicts may be called as witnesses in certain trials,
1065. And may testify,...
•
400
400
401
•
1066. Prisoners, may be brought before courts as witnesses, .
1067. And may testify,..
401
401
1
1068. Prisoners indicted may be brought before court for trial,
1069. In cases of indictment for felony,.
4.02
402
1070. Repeal of former laws,
402
1071. Time when Code takes effect,
406
•
APPENDIX A.
1
A BRIEF ACCOUNT OF THE PRINCIPAL PENAL CODES
OF CONTINENTAL EUROPE,...
APPENDIX B.
A CATALOGUE OF AUTHORITIES,
iii
.. lxix
APPENDIX C.
TABLE OF STATUTES, SHOWING THE PROPOSED EFFECT
OF THE CODE UPON OUR EXISTING LAW,
xcix
1
THE
PENAL CODE
OF THE
STATE OF NEW YORK.
AN ACT
TO ESTABLISH A PENAL CODE.
The People of the State of New York, represented in
Senate and Assembly, do enact as follows:
PRELIMINARY PROVISIONS.
SECTION 1. Title of Code.
2. Its effect.
3. "Crime," and "Public offense," defined.
4. Crimes, how divided.
5. Felony defined.
6. Misdemeanor.
7. Objects of the Penal Code.
8. Conviction must precede punishment.
9. Jury are to find degree of crime.
10. Construction of the Penal Code.
11. Of sections declaring crimes punishable.
12. Punishments, how determined.
13. Punishment of felonies.
14. Of misdemeanors.
SECTION 1. This act shall be known as the PENAL Title of
CODE OF THE STATE OF NEW YORK.
Code.
2
THE PENAL CODE
Its effect.
S2. No act or omission commenced after the day
on which this Code shall take effect as a law, shall
be deemed criminal or punishable, except as pre-
scribed or authorized by this Code, or by some of the
statutes which are specified in section 786 as con-
tinuing in force. Any act or omission commenced
prior to that day may be inquired of, prosecuted and
punished in the same manner as if this Code had not
been passed.
Abolition of Common Law Offenses.-This section
abolishes all common law offenses. Such appears to
have been clearly the intention of the legislature. The
act appointing the commissioners prescribes that "the
Penal Code must define all the crimes for which persons
can be punished."
Effect of the Code upon Anterior Offenses. In so far as
this Code declares acts criminal which heretofore have
not been so regarded, or increases the severity or
changes the kind of punishment inflicted for a crime.
defined by our former laws, the familiar provision of the
Federal Constitution prohibiting ex post facto laws, forbids
that it be made applicable to acts committed before it
takes effect. (U. S. Const., art. 1, § 10, sub. 1; Calder v.
Bull, 3 Dall., 386; Fletcher v. Peck, 6 Cr. 87, 138.) In
so far as it diminishes the severity of the punishment, by
prescribing a less amount or duration of penalty, of the
same kind with that inflicted under the former law, there
may be no constitutional reason to prevent its being made
applicable to all offenses, irrespective of the date of com-
mission. (Hartung v. People, 22 N. Y., 95; Common-
wealth v. Mott, 21 Pich., 492; Keene v. State, 3 Chandl.,
109.) Ameliorations of punishment introduced by statute
are often expressly extended to prior offenses. (See 2
Rev. Stat., 779, § 6; Laws of 1861, ch. 303, § 3; Mass.
Gen. Stat., 880, § 5; Rev. Stat. of Wisc., 757, § 3.) No
natural right arises, however, in behalf of an offender,
to claim the benefit of a subsequent statute mitigating
the penalty for offenses like his own; though clemency
readily awards it to him. Convenience and simplicity in
the administration of penal justice should control upon
this point. The commissioners arc of opinion that any
attempt by general words to render such mitigations of
punishment as are introduced by the Code, applicable to
antecedent offenses, is calculated to raise nice and
embarrassing questions as to whether a given modifica-
tion is a mitigation or not. They observe that it has
been held that the judiciary cannot determine whether a
provision that no person convicted of a capital offense
1
OF THE STATE OF NEW YORK.
3
Y
shall be executed until after a year's confinement, nor then
except upon special warrant from the governor is or is
not less severe than a former law imposing absolutely
the punishment of death. (Hartung v. People, 22 N. Y.,
95, 106.) Also that a substitution of imprisonment not
exceeding seven years, for whipping, has been held not
an increase of punishment. (Strong v. State, 1 Blackf.,
193; Herber v. State, 7 Tex., 69.) They therefore recom-
mend that, as it is necessary to retain the former system
of prohibitions and penalties to a great extent, as respects
acts already committed, it be retained complete.
Should it be thought desirable to give those whose
offenses were committed prior to the Code, the benefit
of any ameliorations of. punishment introduced, the
courts might be relieved of weighing the comparative
severity of penalties, by a provision entitling a person
convicted, after the Code, of an offense committed
before it took effect, the right to elect, at the time of
sentence being pronounced, the punishment prescribed
by the former law, instead of that authorized by the new.
The commissioners, however, deem such a provision
inexpedient.
"Crime"
and "pub-
S 3. A crime or public offense is an act or omission
forbidden by law, and to which is annexed, upon con- lic offense,"
viction, either of the following punishments:
1. Death;
2. Imprisonment;
3. Fine;
4. Removal from office; or,
5. Disqualification to hold and enjoy any office of
honor, trust, or profit under this state.
Rep. Code Cr. Pro., 2, § 3.
"
"}
"misde-
The use of the terms "crime," "felony,
meanor and "offense," is far from uniform even among
legal writers. In addition to the definition given by Mr.
Livingston (and referred to Rep. Code Cr. Pro., 2, note),
the following may be mentioned:
"A crime, or misdemeanor," says Blackstone, "is an
act committed or omitted in violation of a public law,
either forbidding or commanding it." "Crimes and mis-
demeanors, properly speaking, are synonymous terms;
though in common usage, the word 'crimes' is made to
denote such offenses as are of a deeper and more atro-
cious dye."
defined.
.4
THE PENAL CODE
Crimes,
how
divided.
"Misdemeanor," says Christian, "is generally used in
contradiction to felony; and misdemeanors comprehend
all indictable offenses, which do not amount to felony."
(Note to 4 Bl. Comm., 5.)
แ
Misdemeanor," says Chitty, means every offense
inferior to felony, but punishable by indictment, or by
particular prescribed proceedings. The term 'offense'
is usually understood to be a crime not indictable, but
punishable summarily, or by the forfeiture of a penalty."
(1 Gen. Pr., 14.)
"A crime," says Bell, "may be defined to be any act
done in violation of those duties which an individual
owes to the community, and for a breach of which the
law has provided that the offender shall make satisfac-
tion to the public." (Dict. L. of Scot., tit. Crime.)
Bishop defines crimes as "those wrongs which the
government notices as injurious to the public, and punishes
in what is called a criminal proceeding, in its own name
(1 Cr. L., § 43.)
>>
"The word crime," says Chief Justice SAVAGE, of our
own State, speaking of the clause in the Federal Consti-
tution which provides for the extradition of persons
charged with treason, felony, or other crime, "is synony-
mous with misdemeanor, and includes every offense below
felony punished by indictment as an offense against the
public." (Matter of Clark, 9 Wend., 212, 222.)
"The term misdemeanor," says the same judge, in
another case, "is used in contradistinction to felony, and
comprehends all indictable offenses which do not amount
to felony." (Son v. People, 12 Wend., 314.)
The Revised Statutes of this State, have employed the
terms "crime" and "offense" as equivalent to each other,
and as denoting "any offense for which any criminal pun-
ishment may by law be inflicted" (2 Rev. Stat., 702, § 22);
and have defined "felony" as an offense punishable by
death or imprisonment in State prison.
The commissioners have based their definitions upon
the usage which has grown up in this State under the
Revised Statutes; employing "crime" and "offense" in
the extensive signification, and confining "felony" and
"misdemeanor" to denote the classes into which crimes.
are divided. (See also Rep. Code of Cr. Pro., 3, § 5, note.)
$4. Crimes are divided into
1. Felonies;
2. Misdemeanors.
OF THE STATE OF NEW YORK.
5
defined.
S 5. A felony is a crime which is, or may be, pun- Felony
ishable with death, or by imprisonment in a State
prison.
See Rep. Code Cr. Pro., 3, § 5.
S 6. Every other crime is a misdemeanor.
Rep. Code Cr. Pro., 3, § 6.
Misde-
meanor.
Penal
§ 7. This Code specifies the classes of persons who objects of
are deemed capable of crimes, and liable to punish- Code.
ment therefor; and defines the nature of the various
crimes; and prescribes the kind and measure of pun-
ishment to be inflicted for each. The manner of
prosecuting and convicting criminals is regulated by
the Code of Criminal Procedure.
Conviction
must pre-
cede pun-
S 8. The punishments prescribed by this Code can
be inflicted only upon a legal conviction in a court ishment
having jurisdiction.
A similar provision has already been reported in the
Code of Criminal Procedure. (§ 7.) As however the
language employed in the various sections of the Penal
Code, prescribing punishments, requires some such gene-
ral restriction to render it accurate, the commissioners
have repeated the provision here, in order that each Code
may be, as far as possible, complete and independent, and
that the legislature may have it in their power to con-
sider either, without being embarrassed by its connection
with others. The samo consideration has induced them
in a number of instances to insert a provision deemed
necessary to the completeness of the Code, notwithstand-
ing that it has been embodied in one of the Codes already
reported, and now before the Legislature for its conside-
ration.
S9. Whenever a crime is distinguished into degrees,
the jury, if they convict the prisoner, shall find the
degree of the crime, of which he is guilty.
S 10. The rule of the common law that penal sta-
tutes are to be strictly construed, has no application
to this Code. All its provisions are to be construed
according to the fair import of their terms, with a
view to effect its objects and to promote justice.
Jury are to
of crime.
find degree
Construc-
Penal Code.
tion of the
6
THE PENAL CODE
Of sections
declaring
crimes
punishable.
Punish-
ments, how
$ 11. The several sections 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 pun-
ishment prescribed.
S 12. Whenever in this Code the punishment for a
determined crime is left undetermined between certain limits,
the punishment to be inflicted in a particular case
shall be determined by the court authorized to pass
sentence, within such limits as may be prescribed by
this Code.
Punish-
ment of
felonies.
Punish-
ment of
misde-
meanors.
$ 13. Except in cases where a different punishment
is prescribed by this Code or by some existing provi-
sion of law, every offense declared to be felony is
punishable by a fine not exceeding one thousand dol-
lars or by imprisonment in a state prison not exceed-
ing two years, or by both such fine and imprisonment.
S 14. Except in cases where a different punishment
is prescribed by this Code, or by some existing pro-
visions of law, every offense declared to be a misde-
meanor, is punishable by imprisonment in a county
jail not exceeding one year, or by a fine not exceed-
ing five hundred dollars, or by both such fine and
imprisonment.
Based upon 2 Revised Statutes, 597; § 40; which pro-
vided that misdemeanors for which no punishment was
expressly provided, should incur a year's imprisonment,
or a fine of two hundred and fifty dollars. In raising the
limit of the fine to five hundred dollars, the commission-
ers do not intend to intimate that cases formerly coming
within the operation of the general provision should
incur a higher fine; but merely to simplify the provisions
of the Code by allowing the general provision to cover
misdemeanors of a more aggravated character, than were
embraced by the section of the Revised Statutes re-
ferred to.
1
OF THE STATE OF NEW YORK.
7
TITLE I.
OF THE PERSONS LIABLE TO PUNISHMENT FOR CRIME.
SECTION 15. Who are liable to punishment.
16. Who are capable of committing crimes.
17. Intoxicated persons.
18. Morbid criminal propensity.
19. Insane persons, acquitted, how disposed of.
20. Involuntary subjection.
21. Subjection by duress.
22. Subjection inferred from coverture.
23. When not inferred.
24. Inference may be rebutted.
25. Exemption of public ministers.
S 15. The following persons are liable to punish- Who are
ment under the laws of this State:
1. All persons who commit, in whole or in part,
any crime within this State;
2. All who commit theft out of this State, and
bring, or are found with the property stolen, in this
State;
3. All who, being out of this State, abduct or kid-
nap, by force or fraud, any person contrary to the
laws of the place where such act is committed, and
bring, send or convey such person within the limits
of this State, and are afterwards found therein;
4. And all who, being out of this State, cause or
aid, advise or encourage, another person to commit
any act or be guilty of any neglect within this State
which is declared criminal by this Code, and who are
afterwards found within this State.
The principles embodied in this section are also pre-
sented, viewed from a somewhat different point, in the
Reported Code of Criminal Procedure (§§ 127-137),
coupled with provisions distinguishing the proper county
for the trial of various offenses. The question of county
jurisdiction belongs wholly to the Code of Procedure
But the jurisdiction of the State over offenses planned or
in part committed outside its boundaries, ought to be
asserted in this Code, unless elsewhere enacted. The
liable to
punish-
ment.
8
THE PENAL CODE
Who are
capable of
principle has therefore been restated; although in lan-
guage somewhat different from that employed in the
Code of Criminal Procedure.
Subd. 2.-Subdivision 2 of this section embodies the
rule prescribed by 2 Rev. Stat., 698, § 4. The familiar
rule of the English law was that one who committed
theft in one county, and carried the stolen goods into
another county, might be tried in the latter county; the
detaining of the goods there being deemed a continuance
of the theft. The former cases in this State held that
no such rule was applicable, where property was stolen
in another of the United States, and brought into this
State. (People v. Gardner, 2 John., 477; McCullogh's
case, 2 City H. Rec., 45.) The contrary view was, how-
ever, adopted by the Supreme Court of Massachusetts,
(Commonwealth v. Cullins, 1 Mass., 116; Same v. An-
drews, 2 Id., 14,) which held that there was a sufficient
analogy between the different States comprising the
Federal Union, and the counties of a single State, to jus-
tify the adoption of the English rule. The Revised Statutes
following these Massachusetts decisions (see Revisers'
Notes), prescribed the same rulo. The commissioners
now propose that it he extended to thefts committed out
of the State, whether in another state of the Union, or
elsewhere.
Subd. 3. The third subdivision is new; but is sug-
gested as a parallel provision applicable to the case of
abduction of the person. It has been held that such
abduction furnishes no ground for a civil action for dama-
ges in the courts of this State. (Malony v. Dows, 8 Ab-
bott's Pr., 316.) Conceding this to be so, it is conceived
that cases may arise in which the State may be interested
to punish the act.
S 16. All persons are capable of committing crimes,
committing except those belonging to the following classes:
1. Children under the age of seven years;
crimes.
2. Children of the age of seven years, but under
the age of fourteen years, in the absence of proof
that at the time of committing the act or neglect
charged against them, they knew its wrongfulness;
3. Idiots;
4. Lunatics, insane persons, and all persons of
unsound mind, including persons temporarily or par-
tially deprived of reason, upon proof that at the time
OF THE STATE OF NEW YORK.
9
of committing the act charged against them, they
were incapable of knowing its wrongfulness;
5. Persons who committed the act, or made the
omission charged under an ignorance or mistake of
fact which disproves any criminal intent. But igno-
rance of the law does not excuse from punishment
for its violation;
6. Persons who committed the act charged without
being conscious thereof;
7. Persons who committed the act, or made the
omission charged while under involuntary subjection
to the power of superiors.
Subd. 4. As drafted, this subdivision expresses the
rule of the common law as very uniformly understood
and practised, until within a recent period. (McNaugh-
ton's case, 1 Townsend's St. Tr., 312, 401.) Within a few
years past, some respectable authorities in medical juris-
prudence, and some adjudications in cases involving civil
rights, have advanced the view that any mental aberra-
tion, any monomania however limited in subject, is to be
deemed a disease of the mind, as a unit, necessarily
involving and embarrassing all the mental action of the
individual. That what have been heretofore deemed
partial insanities, are in truth special developments of a
disease of the mind, which is necessarily so fundamental
as to render its soundness, even upon subjects furthest
removea .rom the particular hallucination exhibited,
wholly uncertain. (Waring v. Waring, 12 Jurist, O. S.
C. S., 948; Moore's Privy Co. R.; Ray's Med. Jur. of
Insanity, 2 ed., 27, 29.) If this view shall be deemed
sound, and to be a proper element in the criminal juris-
prudence of insanity, a question will arise which is now
suggested only for the consideration of the Legislature;
whether the last clause of the subdivision the words
“upon proof that, &c., they were incapable of knowing
its wrongfulness," may be omitted.
S 17. No act committed by a person while in a state Intoxicated
of voluntary intoxication, shall be deemed less crimi- persons.
nal 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 any particular species or degree of crime,
the jury may take into consideration the fact that the
N
10
THE PENAL CODE
Morbid
criminal
accused was intoxicated at the time, in determining
the purpose, motive or intent with which he commit-
ted the act.
People v. Rogers, 18 N. Y. (4 Smith), 9; People v.
Hammill, 2 Park. Cr., 223; People v. Robin-
son, Id., 235; Keuny v. People, 27 How. Pr.
R., 202.
$ 18. A morbid propensity to commit prohibited
propensity. acts, existing in the mind of a person who is not
shown to have been incapable of knowing the wrong-
fulness of such acts, forms no defense to a prosecution
therefor.
Insane per-
sons, ac-
quitted,
how dis-
posed of.
Involuntary
subjection.
Subjection
by duress.
Subjection
inferred
ture.
The validity of this defense was thoroughly discussed
in the late case of IIuntington, in this State; where the
earlier authorities will be found collected. See Trial of
Huntington. See also Milne's Case, 4 Irvine's Just. Cus.,
334.
S 19. When a jury have returned a verdict acquit-
ting a defendant upon the ground of insanity, the
court may thereupon, if the defendant be in custody,
and they deem his discharge dangerous to the public
safety, order him to be committed to the State lunatic
asylum till he becomes sane.
Rep. Code Cr. Pro., § 511.
>
$ 20. The involuntary subjection to the power of
a superior, which exonerates a person charged with a
criminal act or omission from punishment therefor,
arises either from :
1. Duress; or,
2. Coverture.
$ 21. The duress which excuses a person chargea-
ble with a prohibited act or omission, from punish-
ment, must be actual compulsion by force or fear.
$ 22. A subjection sufficient to excuse from pun-
from cover- ishment may be inferred in favor of a wife, from the
fact of coverture, whenever she committed the act
charged, in the presence of her husband; except
where such act is a participation in:
1. Treason;
OF THE STATE OF NEW YORK.
11
2. Murder;
3. Manslaughter;
4. Maiming;
5. An attempt to kill;
6. Rape;
7. Abduction;
8. Abuse of children;
9. Seduction;
10. Abortion, either upon herself or another female;
11. Concealing the death of an infant, whether her
own or that of another;
*
12. Fraudulently producing a false child, whether
as her own, or as that of another;
13. Bigamy;
14. Incest;
15. The crime against nature;
16. Indecent exposure;
17. Obscene exhibitions of books and prints;
18. Keeping a bawdy or other disorderly house;
19. Misplacing a railway switch; or,
20. Obstructing a railway track.
Treason and murder have long been recognized as
exceptions to the rule which exempts a wife from pun-
ishment for an act committed in her husband's presence.
Other offenses have been considered exceptions by many
authorities. The commissioners have deemed it desirable
to specify the excepted crimes with precision, and to
extend the list to all which are of so grave and clearly
marked a character, or relate so closely to the sex, and
peculiar duties, privileges, or rights of woman, that a
female cannot be supposed to be misled in regard to the
character of her act, by the influence of her husband.
That a wife should aid her husband in the commission
of a rape, a seduction, or of either of the similar crimes
mentioned in the foregoing list, is doubtless improbable.
But the supposition of such a case as possible seems
justified by the conviction of Lord Audley, for forcibly
assisting one of his servants to commit a rape upon his
wife. (3 How. St. Tr., 402.)
12
THE PENAL CODE
When not
inferred.
Inference
may be
rebutted.
Exemption
of public
$ 23. In case of the crimes enumerated in the last
section, the wife is not excused from punishment by
reason of her subjection to the power of her husband,
unless the facts proved show a case of duress as
defined in section 21.
S 24. The inference of subjection arising from
the fact of coverture may be rebutted by any facts
showing that in committing the act charged the
wife acted freely.
The proof of marriage requisite to entitle a woman to
the benefit of this exemption, is intended to be left to the
operation of the ordinary rules applicable to the proof of
that relation in other cases.
$ 25. Ambassadors and other public ministers from
ministers. foreign governments, accredited to the President or
Government of the United States, and recognized by
it according to the laws of the United States, with
their secretaries, messengers, families and servants,
are not liable to punishment in this State, but are to
be returned to their own country for trial and pun-
ishment.
Wheat. Int. L., 264, § 6; 271, § 14; Vattel, 470,
§ 91 and onward; 1 Bish. Cr. L., § 585; Act
of Cong. of Apr. 30, 1790, ch. 9, § 25.
Classifica-
tion of
parties to
crimes.
TITLE II.
OF PARTIES TO CRIMES.
SECTION 26. Classification of partics to crimes.
27. Who are principals.
28. Who are accessories.
29. No accessories in misdemeanor.
30. Punishment of accessories.
S 26. The parties to crimes are classified as ·
1. Principals; and,
2. Accessories.
OF THE STATE OF NEW YORK.
13
principals.
S 27. All persons concerned in the commission of who are
a crime, whether it be felony or misdemeanor, and
whether they directly commit the act constituting the
offense, or aid and abet in its commission, though not
present, are principals.
See Rep. Code Cr. Pro., 156, § 310.
accessories.
S 28. All persons who, after the commission of any who are
felony, conceal or aid the offender, with knowledge
that he has committed a felony, and with intent that
he may avoid or escape from arrest, trial, conviction
or punishment, are accessories.
See Rep. Code Cr. Pro., 156, § 311, note, for reasons
why the commissioners recommend the abrogation of the
distinction between an accessory before the fact, and a
principal. That distinction being abrogated, there is no
longer a need of retaining the phrase "accessory after the
fact."
The above definition of an accessory corresponds with
the definition of an accessory after the fact, as given in 2
Rev. Stat., 699, § 7.
$29. In misdemeanor there are no accessories.
S30. Except in cases where a different punishment
is prescribed by law, an accessory to a felony is pun-
ishable by imprisonment in a state prison not exceed-
ing five years, or in a county jail not exceeding one
year, or by fine not exceeding five hundred dollars,
or by both such fine and imprisonment.
2 Rev. Stat., 699, § 7.
No accesso-
ries in mis-
demeanor.
Punishme't
sories.
of acces-
TITLE III.
OF CRIMES AGAINST RELIGION AND CONSCIENCE.
SECTION 31. Blasphemy defined.
32. Words used in serious discussion.
33. Blasphemy a misdemeanor.
34. Profane swearing defined.
35. Punishment of profane swearing.
36. Summary conviction for profane swearing.
14
THE PENAL CODE
Blasphemy
defined
Words used
in serious
SECTION 37. Penalties, how collected.
38. The Sabbath.
39. Sabbath breaking.
40. Day defined.
41. Sabbath breaking defined.
42. Servile labor.
43. Undue travel.
44. Persons observing another day as a Sabbath.
45. Public sports.
46. Trades, manufactures, and mechanical employments.
47. Public traffic.
48. Serving process.
49. Punishment of Sabbath breaking.
50. Forfeiture of commodities exposed for sale.
51. Proceedings to collect fines imposed by this Chapter.
52. Remedy for maliciously serving process.
53. Compelling adoption of a form of belief.
54. Preventing performance of religious act.
55. Disturbing religious meetings.
56. Definition of the offense.
S31. Blasphemy consists in wantonly uttering or
publishing words casting contumelious reproach or
profane ridicule upon God, Jesus Christ, the Holy
Ghost, the Holy Scriptures or the Christian religion.
A variety of definitions of this offense have been given
by different authorities, upon a review of which the fore-
going definition is based. (Consult Commonwealth v.
Kneeland, 20 Pick., 213; S. C., Thach. Cr. Cas., 346;
Updegraff v. Commonwealth, 11 Serg. & R., 406; People
v. Ruggles, 8 Johns., 290; State v. Chandler, 2 Harring.,
553; Eml. Pref. to St. Tr., 8; 2 Bish. Cr. L., § 69;
Starkie, Lib., 496; 1 Hawk. P. C., 12; 1 Hume Cr. L.,
559.)
It was held in People v. Porter (2 Park. Cr., 14), that if
no person hears the words complained of, no crime is
committed; but that element of the offense seems suffi-
ciently suggested by the words "uttering or publishing."
S 32. If it appears beyond reasonable doubt that
discussion. the words complained of were used in the course of
serious discussion, and with intent to make known or
recommend opinions entertained by the accused, such
words are not blasphemy.
This is a well settled restriction upon the definitions
of blasphemy. (People v. Ruggles, 8 Johns., 290; Com-
OF THE STATE OF NEW YORK.
15
monwealth v. Kneeland, 20 Pick., 213; S. C., Thach. Cr.
Cas., 356; Starkie Lib., 496.) The favor which the law
shows towards liberty of speech, and the free discussion
of religious opinions, forbids that the sincere expression
of belief, however erroneous, should be embarrassed by
the penalty of blasphemy.
S 33. Blasphemy is a misdemeanor.
Blasphemy
a misde-
meanor.
swearing
$34. Profane swearing consists in any use of the Profane
name of God, or Jesus Christ, or the Holy Ghost, defined.
either in imprecating divine vengeance upon the
utterer or any other person, or in light, trifling or
irreverent speech.
S 35. Every person guilty of profane swearing is Punish-
punishable by a fine of one dollar for each offense.
See 1 Rev. Stat., 664, §§ 61–63.
$36. Whenever any profane swearing is committed
in the presence and hearing of any justice of the
peace, mayor, recorder or alderman of any city, while
holding a court, or under any other circumstances
such as in the opinion of the magistrate amount to a
gross violation of public decency, such magistrate
may, in his discretion, immediately convict the of
fender, without any other proof, and in addition to
the fine above prescribed, may impose imprisonment
in a county jail not exceeding ten days.
ment of
profane
swearing.
Summary
for profane
conviction
swearing.
how col-
S 37. If the offender does not forthwith pay the Penalties
penalties incurred, with the costs, or give security for lected.
their payment within six days, he shall be committed
by warrant to the county jail, for every offense or for
any number of offenses whereof he was convicted at
one and the same time, for not less than one day, nor
more than three days; there to be confined in a room
separate from all other prisoners.
bath.
$ 38. The first day of the week being by very gen- The Sab
eral consent set apart for rest and religious uses, the
law forbids to be done on that day certain acts
deemed useless and serious interruptions of the repose
and religious liberty of the community.
16
THE PENAL CODE
Sabbath
breaking.
S 39. Any violation of this prohibition is Sabbath
breaking.
'Day de-
fined.
Sabbath
breaking
defined.
Servile
labor.
These sections, and the twelve which follow, are pro-
posed as substitutes for the provisions upon the same
subject which àre embodied in sections 849 to 851 inclu-
sive, and in section 853 of the Political Code. The Re-
vised Statutes treated the observance of Sunday not
among crimes, but as a branch of the internal police man-
agement of the State. In order that it might be consid-
ered in that connection the Commissioners presented in
the Political Code, the provisions contained in the Re-
vised Statutes. They recommend, however, that so far
as the definition and punishment of Sabbath breaking are
concerned, the offense should be treated in the Penal
Code; while the special provisions found in the Revised
Statutes, and incorporated into the Political Code, re-
specting the proceedings to enforce the law, if desired to
be preserved, may either be retained in the Political
Code, or transferred to the Code of Criminal Procedure.
The sections as now reported present some modifica-
tions in the existing law, intended to render it more con-
formable to public sentiment at the present day.
$ 40. Under the term "day," as employed in the
phrase "first day of the week," in the eight sections
following, is included all the time from midnight to
midnight.
$41. The following are the acts forbidden to be
done on the first day of the week, the doing any of
which is Sabbath breaking:
1. Servile labor;
2. Undue travel;
3. Public sports;
4. Trades, manufactures, and mechanical em-
ployments;
5. Public traffic;
6. Serving process.
S 42. All manner of servile labor, on the first day
of the week, is prohibited, excepting works of neces-
sity or charity.
1 Rev. Stat., 675, § 70.
1
OF THE STATE OF NEW YORK.
17
travel.
S 43. All traveling on the first day of the week is Undue
prohibited, excepting such as is performed upon foot
or in carrying or in a conveyance carrying the United
States mail, or such as is done in cases of charity or
necessity, or in going to or returning from some
funeral, place of worship, or religious assembly within
the distance of twenty miles, or in going for medical
aid or for medicines and returning, or in visiting the
sick and returning, or in going express by order of
some public officer, or in removing one's family or
household furniture when such removal was com-
menced on some other day.
Founded on 1 Rev. Stat., 675, § 70. Exceptions in fa-
vor of travel on foot and in a conveyance carrying the U.
S. mail, are introduced as harmonizing with the view by
which the commissioners have been governed throughout,
in preparing these sections, viz.: that whatever does not
interrupt the rest and religious observance of others,
should be left to private conscience. As the State law
cannot interfere with the carrying the mail, no important
additional element of disturbance is introduced by except-
ing travelers accompanying it from these prohibitions.
observing
as a Sab-
S 44. It is a sufficient defense in proceedings for Persons
servile labor or undue travel on the first day of the another day
week, to show that the accused uniformly keeps bath.
another day of the week as holy time, and does not
labor or travel upon that day, and that the labor or
travel complained of was done in such manner as not
to interrupt or disturb other persons in observing the
first day of the week as holy time.
sports.
S 45. All shooting, hunting, fishing, sporting, play- Public
ing, horse racing, gaming or other public sports, exer-
cises or pastimes, upon the first day of the week, are
prohibited.
1 Rev. Stat., C75, § 70, modified.
$ 46. All trades, manufactures and mechanical
employments upon the first day of the week are pro-
hibited.
Trades,
manufac-
tures, and
mechanical
employ-
ments.
3
со
18
THE PENAL CODE
Public
traffic.
Serving
process.
Punish-
ment of
Sabbath
breaking.
Forfeiture
of com-
modities
exposed for
sale.
Proceed-
ings to col-
lect fines
S 47. All manner of public selling, or offering, or
exposing for sale publicly, of any commodities upon
the first day of the week is prohibited, except that
meats, milk and fish may be sold at any time before
nine o'clock in the morning, and except that food
may be sold to be eaten upon the premises where
sold, and drugs and medicines and surgical appli-
ances may be sold at any time of the day.
Founded on 1 Rev. Stat., 676, § 71; the restriction
upon restaurants and drug stores being re-
moved.
$ 48. All service of legal process of any description
whatever, upon the first day of the week, is prohi-
bited, except in cases of breach of the peace, or
apprehended breach of the peace, or when sued out
for the apprehension of a person charged with crime;
or except where such service shall be specially autho-
rized by law.
Founded on 1 Rev. Stat., 674, § 69.
S 49. Every person guilty of Sabbath breaking is
punishable by a fine of one dollar for each offense.
$50. In addition to the fine imposed by the last
section, all commodities exposed for sale on the first
day of the week in violation of the provisions of this
chapter shall be forfeited. Upon conviction of the
offender by any justice of the peace of the county, or
mayor, recorder or alderman of the city, such officers
shall issue a warrant for the seizure of the forfeited
articles, which, when seized, shall be sold on one day's
notice, and the proceeds shall be paid to the overseers
of the poor for the use of the poor of the town or city.
Rep. Pol. Code, § 851.
$51. The fines prescribed in this chapter for pro-
inct te fane swearing and for Sabbath breaking, may be col-
lected by means of the proceedings prescribed by sec-
tions 854 to 858 inclusive, of the Political Code.
imposed by
this
chapter.
See note to section 39, supra. If the sections of the
Political Code relative to the observance of Sunday are
stricken out as suggested in the former note, some vor-
bal changes will be required in section 854 and others
regulating the procedure peculiar to that offense.
1
OF THE STATE OF NEW YORK.
19
$ 52. Whoever maliciously procures any process in
a civil action to be served on Saturday upon any per-
son who keeps Saturday as holy time and does not
labor on that day, or serves upon him any process
returnable on that day, or maliciously procures any
civil action to which such person is a party to be ad-
journed to that day for trial, is guilty of a misde-
meanor.
Substituted for section 853 of the Political Code. Sec.
tion 852, belongs appropriately to that Code.
$ 53. Any willful attempt by means of threats or
violence, to compel any person to adopt, practice or
profess any particular form of religious belief, is a
misdemeanor.
Remedy for
serving
maliciously
process.
Compelling
a form of
adoption of
belief.
This section is by no means intended to restrict the
authority of parents to instruct their children, or to re-
quire them to attend upon public worship or places of
religious instruction. It only forbids compelling another
to espouse a particular form of belief.
perform-
ligious act.
S54. Every person who willfully prevents by Preventing
threats or violence another person from performing ance of re-
any lawful act enjoined upon or recommended to
such person by the religion which he professes, is
guilty of a misdemeanor.
religious
S 55. Every person who willfully disturbs, inter- Disturbing
rupts or disquiets any assemblage of people met for meetings.
religious worship, by any of the acts or things here-
inafter enumerated, is guilty of a misdemeanor.
S 56. The following are the acts deemed to consti-
tute disturbance of a religious meeting:
1. Uttering any profane discourse, committing any
rude or indecent act, or making any unnecessary
noise, either within the place where such meeting is
held, or so near it as to disturb the order and solem-
nity of the meeting;
2. Exposing to sale or gift any ardent or distilled
liquors, or keeping open any huckster shop within
Definition
of the
offense.
20
THE PENAL CODE
two miles of the place where any religious society
or assembly shall be actually convened for religious
worship, and in any other place than such as shall
have been duly licensed and in which the person ac-
cused shall have usually resided or carried on business;
3. Exhibiting within the like distance, any shows
or plays without a license by the proper authority;
4. Engaging in, or aiding or promoting, within
the like distance, any racing of animals or gaming of
any description;
5. Obstructing in any manner, without authority
of law, within the like distance, the free passage
along any highway to the place of such meeting.
Treason
defined.
TITLE IV.
OF TREASON.
SECTION 57. Treason defined.
58. Levying war defined.
59. Resistance to a statute, when levying war.
60. Punishment.
$ 57. The following acts constitute treason against
the people of this State:
1. Levying war against the people of this State,
within the State; or,
2. A combination of two or more persons, by force
to usurp the government of this State, or to overturn
the same, evidenced by a forcible attempt made
within this State to accomplish such purpose; or,
3. Adhering to the enemies of this State while
separately engaged in war with a foreign enemy in
the cases prescribed in the Constitution of the United
States, and giving to such enemies aid and comfort
in this State or elsewhere.
2 Rev. Stat., 656, § 2.
OF THE STATE OF NEW YORK.
21
war defined.
S 58. To constitute levying war against the people Levying
of this State, an actual act of war must be committed.
To conspire merely to levy war is not enough.
Ex parte Bollman, 4 Cr., 75, 126.
But an
to a statute,
ing war.
$ 59. Where persons rise in insurrection with intent Resistance
to prevent in general by force and intimidation, the when levy-
execution of a statute of this State, or to force its
repeal, they are guilty of levying war.
endeavor, although by numbers and force of arms to
resist the execution of a law in a single instance, and
for a private purpose, is not levying war.
Levying war.-The above section is based on the cases
of United States v. Mitchell, 2 Dall., 348; United States
v. Hanway, 2 Wall., Jr., 139, 203; United States v. Hoxie,
1 Paine, 264; United States v. Vigol, 2 Dall., 346, These
cases (as well as that of ex parte Bollman, supra,) were
all decided in the federal courts, and involved the question
what is to be deemed levying war against the United
States, under the constitutional definition of treason. (U.
S. Const., art. 3, § 3.) They have given a settled construc-
tion to the phrase "levying war," which is equally appli-
cable to a definition of treason against a state.
Outlawry for treason.— Proceedings of outlawry for
treason are prescribed by Rep. Code Cr. Pro., §§ 884-896.
Number of witnesses.-A provision that in prosecutions
for treason, two witnesses to the same overt act shall be
required, is already reported. (Rep. Code Civ. Pro., § 1782.)
$60. Every person convicted of treason shall suffer Punish
death for the same.
2 Rev. Stat., 656, § 1. Provisions regulating the man-
ner of inflicting the penalty of death have been already
reported. (Rep. Code Cr. Pro., §§ 556–574.)
ment.
TITLE V.
OF CRIMES AGAINST THE. ELECTIVE FRANCHISE.
SECTION 61. Bribery, menace and other corrupt practices, at elections.
62. Betting upon elections.
63. Unlawful offers to procure offices for election.
64. Communicating such offers.
22
THE PENAL CODE
Bribery,
menace and
other cor-
rupt prac-
tices, at
elections.
Betting
upon elec
tions.
SECTION 65. Furnishing money for elections, except for specified purposes.
66. Defrauding an elector in his vote.
67. Obstructing electors in attending elections.
68. Voting more than once.
69. Procuring illegal votes.
70. Importing voters who are unqualified.
71. Illegal voting by inhabitants of another state.
72. Illegal voting by inhabitants of this state.
73. Illegal voting by resident of different election district.
74. Illegal voting by unpardoned convict.
75. Procuring name to be registered improperly.
76. Personating qualified voters.
77. False statements upon applying for registry.
78. What is deemed a false statement.
79. Disturbance of public meetings.
80. Preventing public meetings.
81. Preventing electors from attending public meetings.
82. Preventing electors from voting.
83. Disobedience to lawful commands of inspectors.
84. Riotous conduct, or violence, which impedes elections.
85. Summary arrest therefor.
86. Such arrest no bar to a subsequent prosecution.
87. Destroying ballots or ballot-boxes.
88. Keeping false poll lists.
89. Misconduct of inspectors.
90. Falsely canvassing votes, or certifying result of election
91. Election defined.
92. Irregularities in election no defense for violations of this
chapter.
93. Rights of persons lawfully interfering in elections declared.
94. Submission of questions to the people.
95. Good faith in offering to vote, a defense for alleged illegal
voting.
$ 61. Every person who by bribery, menace or any
other corrupt means, either directly, or indirectly,
attempts to influence any elector of this State in
giving his vote, or to deter him from giving the same,
or to disturb or hinder him in the free exercise of the
right of suffrage at any election, is guilty of a mis-
demeanor.
Laws of 1842, ch. 130, tit. vii, § 4.
S62. Every person who makes, offers, or accepts
any bet or wager upon the result of any election or
upon the success or failure of any person or candi-
date, or upon the number of votes to be cast either
in the aggregate, or for any particular candidate, or
?
OF THE STATE OF NEW YORK.
23
upon the vote to be cast by any person or persons;
or upon the decision to be made by any inspector, or
canvasser, of any question arising in the course of
an election, or upon any event whatever depending
upon the conduct or result of an election, is guilty
of a misdemeanor.
The words "person or candidate" are used in several
sections of this chapter in order that it may be clear that
the provisions embrace persons who may be voted for as
officers to conduct an election-e. g., the presiding officer
of a town meeting-yet who are not candidates for the
office to fill which the election is held.
offers to
procure
offices for
electors.
§ 63. Every person who, being a candidate at any Unlawful
election, offers, or agrees to appoint or procure the
appointment of any particular person or persons to
office, as an inducement or consideration to any per-
son to vote for, or procure or aid in procuring the
election of such candidate, is guilty of a misdemeanor.
cating such
S 64. Every person who, not being a candidate, Communi-
communicates any offer made in violation of the last offer.
section, to any person, with intent to induce him to
vote for or to procure or aid in procuring the election
of the candidate making the offer, is guilty of a mis-
demeanor.
money for
S 65. Every person, who with intent to promote the Furnishing
election, either of himself or of any other person, or
candidate, either
1. Furnishes entertainment at his expense to any
meeting of electors previous to or during an election;
2. Pays for, procures or engages to pay for any such
entertainment;
3. Furnishes, or engages to pay or deliver any money
or property, for the purpose of procuring the attend-
ance of voters at the polls, or for the purpose of com-
pensating any person for procuring attendance of
voters at the polls: except for the conveyance of
voters who are sick, poor, or infirm; or
elections,
except for
specified
purposes.
24
THE PENAL CODE
Defrauding
an elector
4. Furnishes or engages to pay or deliver any
money or property, for any purpose intended to pro-
mote the election of any candidate, except for the
expenses of holding and conducting public meetings
for the discussion of public questions, and of printing
and circulating ballots, handbills and other papers
previous to such election,
Is guilty of a misdemeanor.
See Laws of 1842, ch. 120, tit. vii, § 6. The commis-
sioners have enlarged the existing rule, so far as to allow
contributions for the expenses of public meetings as well
as those of printing and circulating election documents.
The same reasons which justify the second species of ex-
penditure, sustain the first, and the existing rule is known
to be stricter than can in practice be enforced.
S 66. Every person who fraudulently alters the
in his vote. ballot of any elector, or substitutes one ballot for
another, or furnishes any elector with a ballot con-
taining more than the proper number of names, or
who intentionally practices any fraud upon any elec-
tor to induce him to deposit a ballot as his vote and
to have the same thrown out and not counted, or
otherwise to defraud him of his vote, is guilty of a
misdemeanor.
Obstructing
electors at-
elections.
Substantially the provision of Laws of 1842, ch. 130,
tit. vii, §§ 7 and 8, but extended to embrace any fraud
upon an elector whereby he is deprived of his vote.
$67. Every person who willfully and without law-
tending ful authority obstructs, hinders, or delays any elector
on his way to any poll where an election shall be
held, is guilty of a misdemeanor.
Voting
more than
once.
See Laws of 1842, ch. 130, tit. vii, § 9.
S 68. Every person who votes more than once at
the same election, or who offers to vote after having
once voted, either in the same or in another election
district, is guilty of a misdemeanor.
See Laws of 1842, ch. 130, tit. vii, § 10. The lan-
guage of that section is "who votes or offers to vote
more than once," &c. This language is capable of being
1
OF THE STATE OF NEW YORK.
25
A per-
taken in a sense which prohibits an innocent act.
son who offers his vote in the wrong election district, and
being refused then goes to the right one and there offers
his vote, may be said to have offered to vote more than
The commissioners have substituted for the am-
biguous expression, the phrase, "who offers to vote after
having once voted."
once.
illegal
$69. Every person who procures or counsels an- Procuring
other to give or offer his vote at any election, know- votes.
ing that such person is not qualified to vote at the
place where such vote is given or offered, is guilty of
a misdemeanor.
See Laws of 1842, ch. 130, tit. vii, § 11.
voters who
are un-
qualified.
$ 70. Every person who procures or counsels an- Importing
other to enter any town, ward, or election district for
the purpose of giving his vote at an election, know-
ing that such person is not entitled so to vote, is
guilty of a misdemeanor.
See Laws of 1842, ch. 130, tit. vii, § 12.
S 71. Every inhabitant of another state or country
who, not being entitled to vote within this State, votes
or offers to vote at an election in this State, is guilty
of felony.
See Laws of 1842, ch. 130, tit. vii, § 13.
$ 72. Every inhabitant of this State, who not being
entitled to vote, knowingly votes or offers to vote at
an election, is guilty of misdemeanor.
Ib.
Illegal vot-
inhabitant
state.
ing by
of another
legal vot
inhabitant
ing by
of this
state.
Illegal vot-
resident of
ing by
different
S 73. Every person who, at any election, knowingly
votes or offers to vote in any election district in which
he does not reside, or in which he is not authorized election
by law to vote, is guilty of a misdemeanor.
See Laws of 1842, ch. 130, tit. vii, § 10.
district.
voting by
convict.
S 74. Every person who having been convicted of negal
any bribery or felony, thereafter offers to vote at any unpardoned
election, without having been pardoned and restored
to all the rights of a citizen, is guilty of a misde-
meanor.
4
26
THE PENAL CODE
Procuring
name to be
registered
improperly.
Personat-
ing quali-
fled voter.
False state-
ments upon
registry.
Compare Const. of 1846, art. 11, § 2; Laws of 1847,
ch. 240, § 15; Laws of 1842, ch. 130, tit. i, § 3 and tit.
iv, § 38.
As the definitions of "felony" and "infamous crime"
are substantially the same (2 Rev. Stat., 702, §§ 30, 31),
the commissioners have employed the word "felony"
instead of the phrase "infamous crime deemed by tho
laws of this State a felony," found in the act of 1842..
S 75. Every person who causes his name to be reg-
istered as that of an elector, upon any registry of
voters authorized by law to be kept in any town, city
or election district of this State, knowing that he is
not a qualified voter within the territorial limits
covered by such registry, is punishable by imprison-
ment in a state prison not less than one year.
This section and that next following, are founded on
Laws of 1859, ch. 380. § 14. That act relates to New
York city alone; but the rule is here generalized.
S 76. Every person who, at any election, falsely
personates another person, and in such personating
offers to vote at any election, is punishable by impri-
soument in a state prison not less than one year.
The original section applies only to personations of
registered voters.
S 77. Every person who, at the time of requesting
applying for his name to be registered as that of a qualified voter,
upon any registry of voters authorized by law to be
kept in any city, town, or election district of this
State, or at the time of offering his vote at any elec-
tion, knowingly makes any false statement or employs
any false representation or pretence or token, to pro-
cure his name to be registered or his vote to be re-
ceived, is guilty of a misdemeanor.
What is
deemed a
false state-
ment.
See Laws of 1859, ch. 380, § 7.
$ 78. A false statement, representation or token,
made or used in the presence and to the knowledge
of a person requesting his name to be registered or
OF THE STATE OF NEW YORK.
27
offering his vote, is to be deemed made by himself,
if it appears that it was made or used in support of
his claim to be registered or to vote, that he knew it
to be false, and suffered it to pass uncontradicted.
This section is new, but embodies familiar principles,
and seems appropriate in order to give the preceding
section its full application.
ance of pub-
ings.
S 79. Every person who willfully disturbs or breaks Disturb-
up any public meeting of electors and others, law- lic meet-
fully being held for the purpose of considering public
questions, is guilty of a misdemeanor.
public meet-
$ 80. Every person who, by threats, intimidations, Preventing
or unlawful violence willfully hinders or prevents ings.
electors from assembling in public meeting for the
consideration of public questions, is guilty of a mis-
demeanor.
S81. Every person who makes use of any force or
violence, or of any threat to do any unlawful act, as
a means of preventing an elector from attending any
public meeting lawfully held for the purpose of con-
sidering any public questions, is guilty of a misde-
meanor.
Preventing
from at-
public
electors
tending
meetings.
electors
voting.
S82. Every person who willfully, by unlawful arrest, Preventing
by force and violence, or by threats or intimidations, from
prevents an elector from voting at an election, or
employs either of such means to hinder him from
voting or to cause him to vote for any person or can-
didate, is guilty of a misdemeanor.
S 83. Every person who willfully disobeys a lawful
command of an inspector or board of inspectors,
given in the execution of their duty as such, at an
election, is guilty of a misdemeanor.
See Laws of 1842, ch. 130, tit. vii, § 9.
Disobedi-
ence to law-
ful com-
inspectors.
mands of
conduct or
S84. Every person who is guilty of any riotous Riotous
conduct, or who causes any disturbance or breach of violence
28
THE PENAL CODE
which im-
pedes elec-
tions.
Summary
arrest
therefor.
Such arrest
no bar to a
prosecu-
tion.
the peace, or uses any disorderly violence, or threats
of violence whereby any election is impeded or hin-
dered, or whereby the lawful proceedings of the
inspectors or canvassers at such election, in the dis-
charge of their duty, are interfered with, is guilty of
a misdemeanor.
$ 85. Whenever at an election any person refuses
to obey the lawful command of the inspectors, or by
any disorderly conduct in their presence interrupts
or disturbs their proceedings, they may make an
order directing the sheriff or any constable of the
county, or policeman of the town or city, to take the
person so offending into custody, and detain him
until the final canvass of the votes shall be completed.
But such order shall not prohibit the person taken
into custody from voting at the election.
See Laws of 1842, ch. 130, tit. vii, § 33.
$86. The fact that any person, offending against
subsequent the provisions of the preceding section, was taken into
custody and detained, as therein authorized, forms no
defense to a prosecution for the offense committed,
under any provisions of this Code.
Destroying
ballots, or
ballot-
boxes.
Keeping
false poll
lists.
Intended to prevent the possible question, whether the
rule that no person shall be twice punished for the same
offense should apply in the case contemplated.
S87. Every person who willfully breaks or destroys,
on the day of any election, or before the canvass is
completed, any ballot-box used or intended to be
used at such election, or defaces, injures, destroys or
conceals, any ballot which has been deposited in any
ballot-box at an election, and has not already been
counted, or canvassed, or any poll list used or in-
tended to be used at such election, is guilty of felony.
S 88. Every clerk of the poll at any election, who
willfully keeps a false poll list, or knowingly inserts
in his poll list any false statement, is guilty of a mis-
demeanor.
OF THE STATE OF NEW YORK.
29
í
of inspec-
$89. Every inspector of an election who willfully Misconduct
excludes any vote duly tendered, knowing that the tors.
person offering the same is lawfully entitled to vote at
such election, or who willfully receives a vote from any
person who has been duly challenged, in relation to
his right to vote at such election, without exacting
from such person such oath or other proof of qualifi-
cation as may be required by law, or who willfully
omits to challenge any person offering to vote whom
he knows or suspects not to be duly entitled to vote,
and who has not been challenged by any other person
is guilty of a misdemeanor.
$ 90. Every inspector of any election, member of
any board of canvassers, messenger or other officer
authorized to take part in or perform any duty in
relation to any canvass or official statement of the
votes cast at any election, who willfully makes any
false canvass of such votes, or makes, signs, publishes
or delivers any false return of such election, or any
false certificate of the result of such election, knowing
the same to be false, or willfully defaces, destroys or
conceals any statement or certificate entrusted to his
care, is guilty of a misdemeanor.
Falsely can-
votes, or
result of
vassing
certifying
election.
defined,
$91. The word "election," as used in this chapter, Election
designates only elections had within this state for the
purpose of enabling electors, as such, to choose some
public officer or officers under the laws of this state
or of the United States.
ties in elec
tions no de
S 92. Irregularities or defects in the mode of notic- Irregulari-
ing, convening, holding or conducting an election
authorized by law, form no defense to a prosecution
for a violation of the provisions of this chapter.
Decisions in other states raise the question whether the
invalidity of an election is an answer to a prosecution for
illegally voting at it. For cases in the affirmative, see
State v. Williams, 25 Me., 561; Commonwealth v. Gibbs,
4 Dall., 253: in the negative, State v. Bailey, 21 Me., 62;
Commonwealth v. Shaw, 7 Metc., 52; People v. Cook, 8
N. Y. (4 Seld.), 67. The Commissioners recommend the
rule in the text as clearly consonant with justice.
fense for
violations
of this
chapter.
30
THE PENAL CODE
Rights of
persons
law fully
interfering
in elections
declared.
Submission
of questions
ple.
S 93. But nothing in this chapter shall be construed
to authorize the punishment of any persons who, by
authority of law, may interfere to prevent or regulate
an election which has been unlawfully noticed or
convened, or is being, or is about to be, unlawfully
conducted.
$94. Every act which by the provisions of this
to the peo- chapter is made criminal when committed with refer-
ence to the election of a candidate, is equally criminal
when committed with reference to the determination
of a question submitted to electors to be decided by
votes cast at an election.
Good faith
in offering
to vote, a
defense for
alleged
illegal
voting.
$ 95. Upon any prosecution for procuring, offering
or casting an illegal vote, the accused may give in
evidence any facts tending to show that he honestly
believed upon good reason that the vote complained
of was a lawful one; and the jury may take such facts
into consideration in determining whether the acts
complained of, were knowingly done or not.
This section is intended to enable juries, upon proper
proof, to relax in this class of cases, the strict rule that
ignorance of the law is no excuse. It has been held that
while an elector who votes in ignorance of facts which
disqualify him, is not liable to punishment, one who votes
with a knowledge of such facts is not excused though he
voted in an honest belief that he was entitled to do so.
(McGuire v. State, 7 Humph., 54; State v. Boyett, 10 Ired.,
336.) Whether upon given facts a right to vote exists,
is frequently a legal question of such difficulty that one
claiming it in good faith, though erroneously. ought to be
exempt from punishment. See Commonwealth v. Aglar,
Thatcher's Crim. Cas., 412; Same v. Wallace, Id., 592;
Same v. Bradford. 9 Metc., 268; in support of the rule
embodied in the text.
OF THE STATE OF NEW YORK.
31
TITLE VI.
OF CRIMES BY AND AGAINST THE EXECUTIVE POWER
OF THE STATE.
SECTION 96. Acting in a public office without having qualified.
97. Acts of officer de facto, not affected.
98. Giving or offering bribes.
99. Asking or receiving bribes.
100. Attempting to prevent officers from performing duty.
101. Resisting officers.
102. Taking excessive fees.
103. Taking reward for omitting or delaying official acts.
104. Taking fees for services not rendered.
105. Taking unlawful reward for services in extradition of fugi-
tives.
106. Buying appointments to office
107. Selling appointments to office.
108. Taking rewards for deputation.
109. Unlawful grant or deputation void, except as to official acts
done before conviction.
110. Exercising functions of office, wrongfully.
111. Refusal to surrender books, &c., of office to successor upon
demand.
112. Administrative officers.
S96. Every person who executes any of the func-
Acting in a
without
public office
having
tions of a public office without having taken and
duly filed the required oath of office, or without qualified.
having executed and duly filed the required security,
is guilty of a misdemeanor; and in addition to the
punishment prescribed therefor, he forfeits his right
to the office.
Corresponds with Rep. Pol. Code, § 222.
$97. The last section shall not be construed to
affect the validity of acts done by a person exercising
the functions of a public office in fact, where other
persons than himself are interested in maintaining
the validity of such acts.
S 98. Every person who gives or offers any bribe to
any executive officer of this State with intent to in-
fluence him in respect to any act, decision, vote, opinion,
Acts of
officer de
facto, not
affected.
Giving or
bribes.
offering
32
THE PENAL CODE
Asking or
receiving
bribes.
Attempting
to prevent
officers
from per-
forming
duty.
Resisting
officers.
Taking
excessive
fees.
Taking
reward for
delaying
or other proceeding as such officer, is punishable by
imprisonment in a state prison not exceeding ten
years, or by fine not exceeding five thousand dollars,
or both.
2 Rev. Stat., 682, §9; Laws of 1853, ch. 539, § 1.
S 99. Every executive officer or person elected or
appointed to an executive office who asks, receives or
agrees to receive any bribe upon any agreement or
understanding that his vote, opinion or action upon
any matter then pending or which may by law be
brought before him in his official capacity, shall be
influenced thereby, is punishable by imprisonment in
a state prison not exceeding ten years, or by a fine
not exceeding five thousand dollars, or both; and in
addition thereto forfeits his office and is forever dis-
qualified from holding any public office under this
State.
Substantially the provisions of 2 Rev. Stat., 683, § 10,
as amended; Laws of 1853, ch. 539, § 1; but extended
to embrace asking a bribe.
S 100. Every person who attempts, by means of
any threat or violence, to deter or prevent an execu-
tive officer from performing any duty imposed upon
such officer by law, is guilty of a misdemeanor.
S 101. Every person who knowingly resists, by the
use of force or violence, any executive officer, in the
performance of his duty, is guilty of a misdemeanor.
S 102. Every executive officer who asks or receives
any emolument, gratuity or reward, or any promise
of any emolument, gratuity or reward, excepting such
as may be authorized by law, for doing any official
act, is guilty of a misdemeanor.
Sce 2 Rev. Stat., 650, § 5.
S 103. Every executive officer who asks or receives
omitting or any emolument, gratuity or reward, or any promise
official acts. of any emolument, gratuity or reward, for omitting
or deferring the performance of any official duty, is
guilty of a misdemeanor.
1
OF THE STATE OF NEW YORK.
33
for services
not ren-
dered.
$104. Every executive officer who asks or receives Taking fees
any fee or compensation for any official service which
has not been actually rendered, except in cases of
charges for prospective costs, or of fees demandable
in advance in the cases allowed by law, is guilty of a
misdemeanor.
unlawful
services in
extradition
$ 105. Every officer of this State who asks or re- Taking
ceives any compensation, fee or reward of any kind reward for
for any service rendered or expense incurred in pro- effugitives.
curing from the Governor of this State a demand
upon the executive authority of a state or territory
of the United States, or of a foreign government, for
the surrender of a fugitive from justice; or of any
service rendered or expense incurred in procuring the
surrender of such fugitive, or of conveying him to
this State or for detaining him therein, except upon
an employment by the Governor of this State, and
upon an account duly audited and paid out of the
State treasury, is guilty of a misdemeanor.
This section is suggested to supersede the provisions
of Rep. Code Cr. Pro., §§ 907, 908.
§ 106. Every person who gives, or agrees or offers
to give any gratuity or reward in consideration that
himself or any other person shall be appointed to
any public office, or shall be permitted to exercise,
perform or discharge the prerogatives or duties of
any office, is punishable by imprisonment in the
county jail not less than six months nor more than
two years, or by a fine of not less than two hun-
dred dollars or more than one thousand dollars, or
both.
2 Rev. Stat., 696, § 32, as amended, Laws of 1863, ch
51, § 1.
S 107. Every person who, directly or indirectly, asks
or receives or promises to receive any gratuity or
reward or any promise of a gratuity or reward, for
appointing another person or procuring for another
person an appointment to any public office or any
Buying ap-
to office.
pointments
Selling ap-
to office.
pointments
5
84
THE PENAL CODE
rewards for
clerkship, deputation or other subordinate position in
any public office, is punishable by imprisonment
in the county jail not less than six months nor
more than two years, and by a fine of not less than
two hundred dollars nor more than one thousand
dollars, or both.
See 2 Rev. Stat., 696, § 35, as amended Laws of
1863, ch. 51, § 1.
Taking S 108. Every public officer who, for any gratuity or
deputation. reward, appoints another person to a public office,
or permits another person to exercise, perform or
discharge any of the prerogatives or duties of his
office, is punishable by imprisonment in the county
jail not less than six months nor more than two
years, and by a fine of not less than two hundred
dollars or more than one thousand dollars; and in
addition thereto he forfeits his office.
Unlawful
grant or
deputation
void, except
as to official
acts done
before con-
viction.
Exercising
functions
wrongfully.
S 109. Every grant or deputation made contrary to
the provisions of either of the last two sections is
void; but official acts done before a conviction for
any offense prohibited by those sections, shall not
be deemed invalid, in consequence of the invalidity
of such grant or deputation.
Founded on 2 Rev. Stat., 696, § 37.
S 110. Every person who willfully intrudes himself
of office into any public office to which he has not been duly
elected or appointed, and every person who, having
been an executive officer, willfully exercises any of
the functions of his office after his term of office has
expired and a successor has been duly elected or
appointed, and has qualified, in his place, and he has
notice thereof, is guilty of a misdemeanor.
Refusal to
surrender
of office to
successor
S 111. Every person who, having been an executive
books, &c., officer of this State, wrongfully refuses to surrender
the official seal or any of the books and papers apper-
taining to his office, to his successor who has been
duly elected or appointed, and has duly qualified, and
upon de-J
mand.
9
OF THE STATE OF NEW YORK.
35
has demanded the surrender of the seal or books and
papers of such office, is guilty of a misdemeanor.
trative
S 112. The various provisions of this chapter which Adminis-
relate to executive officers apply in relation to admin- officers.
istrative officers, in the same manner as if administra-
tive and executive officers were both mentioned.
TITLE VII.
OF CRIMES AGAINST THE LEGISLATIVE POWER.
SECTION 113. Preventing the meeting or organization of either branch of
the legislature.
114. Disturbing the legislature while in session.
115. Compelling adjournment.
116. Intimidating a member of the legislature.
117. Compelling either house to perform or omit any official act.
118. Altering draft of bill.
119. Altering engrossed copy.
120. Giving bribes to members of the legislature.
121. Receiving bribes by members of legislature.
122. Witnesses refusing to attend before the legislature or legis-
lative committees.
123. Refusing to testify.
124. Members of the legislature liable to forfeiture of office.
S 113. Every person who willfully and by force or
fraud prevents the legislature of this State, or either
of the houses composing it, or any of the members
thereof, from meeting or organizing, is punishable by
imprisonment in a state prison not less than five nor
more than ten years, or by a fine of not less than five
hundred dollars nor more than two thousand dollars,
or both.
See Liv. Cr. Code, 381, § 118.
Preventing
or organiza-
either
the meeting
tion of
branch of
the legis-
lature.
the legisla-
ture while
S114. Every person who willfully disturbs the Disturbing
legislature of this State, or either of the houses com- in session.
posing it, while in session, or who commits any
disorderly conduct in the immediate view and presence
36
THE PENAL CODE
Compelling
adjourn-
ment.
Intimidat-
ing a mem-
ber of the
legislature.
Compelling
either house
to perform
or omit any
official act.
Altering
draft of bill.
of either house of the legislature, tending to interrupt
its proceedings or impair the respect due to its autho-
rity, is guilty of a misdemeanor.
$ 115. Every person who willfully and by force or
fraud compels or attempts to compel the legislature
of this State, or either of the houses composing it, to
adjourn or disperse, is punishable by imprisonment
in a state prison not less than five nor more than ten
years, or by fine of not less than five hundred dollars,
nor more than two thousand dollars, or both.
Liv. Cr. Code, 381, § 118.
$116. Every person who willfully, by intimidation
or otherwise, prevents any member of the legisla-
ture of this State, from attending any session of the
house of which he is a member, or of any committee
thereof, or from giving his vote upon any question
which may come before such house, or from perform-
ing any other official act, is guilty of a misdemeanor.
Ib.
S 117. Every person who willfully compels or at-
tempts to compel either of the houses composing the
legislature of this State to pass, amend, or reject any
bill, or resolution, or to grant or refuse any petition,
or to perform or omit to perform any other official
act, is punishable by imprisonment in a state prison
not less than five nor more than ten years, or by a
fine of not less than five hundred dollars nor more
than two thousand dollars, or both.
Ib.
S 118. Every person who fraudulently alters the
draft of any bill or resolution which has been pre-
sented to either of the houses composing the legisla-
ture, to be passed or adopted, with intent to procure
it to be passed or adopted by either house, or certified
by the presiding officer of either house, in language
different from that intended by such house, is guilty
of felony.
OF THE STATE OF NEW YORK.
37
engrossed
S 119. Every person who fraudulently alters the Altering
engrossed copy or enrollment of any bill which has copy.
been passed by the legislature of this State, with
intent to procure it to be approved by the governor
or certified by the secretary of State, or printed or
published by the printer of the Statutes in language
different from that in which it was passed by the leg-
islature, is guilty of felony.
bribes to
members of
the legisla
S 120. Every person who gives or offers to give a Giring
bribe to any member of the legislature, or attempts
directly, or indirectly, by menace, deceit, suppression ture.
of truth or any other corrupt means to influence a
member in giving or withholding his vote, or in not
attending the house of which he is a member, or any
committee thereof, is punishable by imprisonment in
a state prison not exceeding ten years or by fine not
exceeding five thousand dollars, or both.
S 121. Every member of either of the houses com-
posing the legislature of this State, who asks, receives,
or agrees to receive any bribe upon any understand-
ing that his official vote, opinion, judgment or action
shall be influenced thereby, or shall be given in any
particular manner or upon any particular side of any
question or matter upon which he may be required
to act in his official capacity, or who gives or offers
or promises to give any official vote in consideration
that another member of the legislature shall give
any such vote, either upon the same or another
question, is punishable by imprisonment in a state
prison not exceeding ten years, or by fine not ex-
ceeding five thousand dollars, or both.
This section, with the one which precedes, is founded
upon the provisions of 2 Rev. Stat., 682, § 9, as amended
by Laws of 1853, ch. 539, § 2. It is extended, however,
to embrace what is known as "log rolling," or agreements
to exchange votes for or against measures pending before
the legislature; and, also, so as to embrace deceits and
concealments practised upon members of the legislature
to obtain their votes.
Receiving
members of
bribes by
the legisla-
ture.
38
THE PENAL CODE
Witnesses
refusing to
attend
before the
In Marshall v. Baltimore & Ohio R. R. Co., 16 How.
(U. S.) R., 314, the court (commenting upon the cases of
Fuller v. Dame, 18 Pick., 470; Hatzfield v. Gulden, 7
Watts, 152; Clippinger v. Hepbaugh, 5 Watts & S., 315;
Wood v. McCan, 6 Dana, 366; Hunt v. Test, 8 Alu.,
719; The Commonwealth v. Callaghan, 2 Va. Cas., 460),
say: "The sum of these cases is, 1. All contracts for a
contingent compensation for obtaining legislation, or to
use personal or any secret or sinister infinence on legis-
lators are void by the policy of the law.
2. Secrecy as to the character under which the agent
or solicitor acts tends to deception, and is immoral and
fraudulent; and where the agent contracts to use secret
influences, or voluntarily, without contract with his prin-
cipal, uses such means, he cannot have the assistance of
a court to recover compensation.
3. That what, in the technical vocabulary of politicians,
is termed "log rolling" is a misdemeanor at common law,
punishable by indictment.
S 122. Every person who, being duly summoned
to attend as a witness before either house of the leg-
legislature islature or any committee thereof, authorized to sum-
mon witnesses, refuses or neglects without lawful
excuse to attend pursuant to such summons, is guilty
of a misdemeanor.
or legisla-
tive com-
mittees.
Refusing to
testify.
Members of
the legisla-
ture liable
to forfeiture
of office.
S 123. Every person who being present before
either house of the legislature or any committee
thereof authorized to summon witnesses, willfully
refuses to be sworn or affirmed, or to answer any
material and proper question, or to produce upon
reasonable notice any material and proper books,
papers, or documents in his possession or under his
control, is guilty of a misdemeanor.
S 124. The conviction of a member of the legisla
ture of either of the crimes defined in this chapter,
involves as a consequence in addition to the punish-
ment prescribed by this Code, a forfeiture of his
office; and disqualifies him from ever afterwards
holding any office under this State.
1
OF THE STATE OF NEW YORK.
39
TITLE VIII.
OF CRIMES AGAINST PUBLIC JUSTICE.
CHAPTER I.
BRIBERY AND CORRUPTION.
SECTION 125. Giving bribes to judges, jurors, referees, &c.
126. Receiving bribes by judicial officers,
127. Receiving bribes by jurors, referees, &c.
128. Misconduct by jurors, arbitrators and referees.
129. Judicial officers, jurors, referees, &c., accepting gifts from
parties.
130. "Gifts" defined.
131. Improper attempts to influence jurors, referees or arbitra-
tors.
132. Drawing jurors fraudulently.
133. Misconduct by officers having charge of juries.
give Giving
bribes to
jurors,
referees,
&c.
§ 125. Every person who gives or offers to
a bribe, to any judicial officer, juror, referee, arbi- judges,
trator, umpire or assessor, or to any person who may rece
be authorized by law to hear or determine any ques-
tion or controversy, with intent to influence his vote,
opinion or decision upon any matter or question which
is or may be brought before him for decision, is pun-
ishable by imprisonment in a state prison not exceed-
ing ten years, or by a fine not exceeding five thousand
dollars, or both.
bribes by
judicial
officers.
$126. Every judicial officer of this State who asks, Receiving
receives, or agrees to receive any bribe upon any
agreement or understanding that his vote, opinion
or decision upon any matter or question which is or
may be brought before him for decision shall be
thereby influenced, is punishable by imprisonment in
a state prison not exceeding ten years, or by a fine not
exceeding five thousand dollars or both; and in addi-
tion thereto forfeits his office and is forever disqualified
from holding any public office under this State.
This section, with the preceding, is founded upon 2 Rev.
Stat., 683, § 10, as amended, Laws of 1853, ch. 539.
40
THE PENAL CODE
Receiving
bribes by
jurors,
referees,
&c.
Misconduct
by jurors,
arbitrators
and refer-
ces.
Judicial
officer,
juror,
roferee, &c.,
accepting
gifts from
parties.
"Gift"
defined.
Improper
attempts to
influence
jurors.
referees or
arbitrators.
S 127. Every juror, referee, arbitrator, umpire or
assessor, and every person authorized by law to hear
or determine any question or controversy, who asks,
receives, or agrees to receive any bribe upon any
agreement or understanding that his vote, opinion
or decision, upon any matter or question which is or
may be brought before him for decision shall be
thereby influenced, is guilty of felony.
S 128. Every juror, or person drawn or summoned
as a juror, or chosen arbitrator, or umpire, or ap-
pointed referee, who either:
1. Makes any promise or agreement to give a ver-
dict for or against any party; or,
2. Willfully permits any communication to be made
to him, or receives any book, paper, instrument, or
information relating to any cause pending before
him except according to the regular course of pro-
ceeding upon the trial of such cause,
Is guilty of a misdemeanor.
S 129. Every judicial officer, juror, referee, arbitra-
tor or umpire, who accepts any gift from any person,
knowing him to be a party in interest or the attorney
or counsel of any party in interest to any action or
proceeding then pending or about to be brought
before him, is guilty of a misdemeanor.
S 130. The word "gift" in the foregoing section
shall not be taken to include property received by
inheritance, by will, or by gift in view of death.
S 131. Every person who attempts to influence a
juror, or any person summoned or drawn as a juror,
or chosen an arbitrator or appointed a referee, in re-
spect to his verdict, or decision of any cause or matter
pending or about to be brought before him, either:
1. By means of any communication oral or written
had with him, except in the regular course of pro-
ceedings upon the trial of the cause;
OF THE STATE OF NEW YORK.
41
2. By means of any book, paper, or instrument
exhibited otherwise than in the regular course of
proceedings upon the trial of the cause;
3. By means of any threat or intimidation;
4. By means of any assurance or promise of any
pecuniary or other advantage; or,
5. By publishing any statement, argument, or
observation relating to the cause,
Is guilty of a misdemeanor.
The existing statute declares every person who shell
attempt "improperly " to influence a juror, guilty of a mis-
demeanor (2 Rev. Stat., 693, § 16), but leaves the ques-
tion, what attempts are improper, to judicial construction.
The commissioners deem it desirable that the Code should
specify with greater precision the acts intended to be for-
bidden.
jurors frau-
$132. Every person authorized by law to assist at Drawing
the drawing of any jurors to attend any court, who dulently.
willfully puts or consents to the putting upon any
list of jurors as having been drawn, any name which
shall not have been drawn for that purpose in the
manner prescribed by law; or, who omits to place on
such list any name that shall have been drawn in the
manner prescribed by law; or, who signs or certifies any
list of jurors as having been drawn which was not
drawn according to law; or, who is guilty of any other
unfair, partial, or improper conduct in the drawing
of any such list of jurors, is guilty of a misdemeanor.
by officer
charge of
$133. Every officer to whose charge any juror is Misconduct
committed by any court or magistrate, who negli- having
gently or willfully permits them, or any one of them,
either:
1. To receive any communication from any person;
2. To make any communication to any person;
3. To obtain or receive any book or paper, or
refreshment; or,
4. To leave the jury room without the leave of
such court, or magistrate first obtained,
Is guilty of a misdemeanor.
juries.
I
6
42
THE PENAL CODE
Rescuing
prisoners.
Retaking
goods from
custody of
officer.
CHAPTER II.
RESCUES.
SECTION 134. Rescuing prisoners.
135. Retaking goods from custody of officer.
S 134. Every person who by force or fraud rescues
or attempts to rescue, or aids another person in res-
cuing or in attempting to rescue any prisoner from
any officer or other person having him in lawful
custody, is punishable as follows:
1. If such prisoner was in custody upon a charge
or conviction of felony, by imprisonment in a state
prison for not less than ten years;
2. If such prisoner was in custody otherwise than
upon a charge or conviction of felony, by imprison-
ment in a county jail not exceeding one year, or by
fine not exceeding five hundred dollars, or by both
such fine and imprisonment.
$ 135. Every person who willfully injures or de-
stroys, or takes or attempts to take, or assists any
other person in taking or attempting to take from
the custody of any officer or person, any personal
property which such officer or person has in charge
under any process of law, is guilty of a misdemeanor.
CHAPTER III.
ESCAPES, AND AIDING THEREIN.
SECTION 136. Re-arrest of escaped prisoners.
137. Escape from state prison.
138. Attempt to escape from state prison.
139. Escape from other than state prison.
140. Attempt to escape from other than state prison.
141. Assisting prisoner to escape from prison.
142. Carrying into prison things useful to aid an escape.
143. Concealing escaped prisoner.
144. Assisting prisoner to escape from officer.
OF THE STATE OF NEW YORK.
43
SECTION 145. "Prison " defined.
146. "Prisoner" defined.
escaped
$136. Every prisoner confined upon conviction for Re-arrest of
a criminal offense, who escapes from prison, may be prisoner.
pursued, retaken and imprisoned again notwithstand-
ing the term for which he was sentenced to be impri-
soned may have expired at the time when he is
retaken and he shall remain so imprisoned, until
tried for such escape, or discharged on a failure to
prosecute therefor.
2 Rev. Stat., 685, § 20.
Escape
S 137. Every prisoner confined in a state prison from state
for a term less than for life, who by force or fraud prison.
escapes therefrom, is punishable by imprisonment in
such prison for a term not exceeding five years, to
commence from the expiration of the original term
of his imprisonment.
Compare 2 Rev. Stat., 685, § 21.
S138. Every prisoner confined in a state prison
for a term less than for life, who attempts by force
or fraud, although unsuccessfully, to escape from such
prison, is guilty of felony.
Compare 2 Rev. Stat., 685, § 23.
$ 139. Every prisoner confined in any other prison
than a state prison, who by force or fraud escapes
therefrom, is punishable by imprisonment in a state
prison not exceeding two years, or in a county jail
not exceeding one year, to commence from the expi-
ration of the original terin of his imprisonment.
Compare 2 Rev. Stat., 685, § 22.
Attempt to
state
escape from
prisou.
Escape
prio
from other
than state
escape from
state
S 140. Every prisoner confined in any other prison Attempt to
than a state prison, who attempts by force or fraud, other than
although unsuccessfully, to escape therefrom, is pun- prison.
ishable by imprisonment in a county jail not exceed-
ing one year, to commence from the expiration of
the original term of his imprisonment.
Compare 2 Rev. Stat., 685, § 24.
44
THE PENAL CODE
Assisting
prisoner to
prison.
S 141. Every person who willfully, by any means
escape from whatever, assists any prisoner confined in any prison
to escape therefrom, is punishable as follows:
Carrying
into prison,
things use-
ful to aid an
escape.
Concealing
escaped pri-
soner.
Assisting
prisoner to
officer.
1. If such prisoner was confined upon a charge or
conviction of felony, by imprisonment in a state
prisou not exceeding ten years ;
2. If such prisoner was confined otherwise than
upon a charge or conviction of felony, by imprison-
ment in a county jail not exceeding one year, or by
fine not exceeding five hundred dollars, or both.
S 142. Every person who carries or sends into any
prison, anything useful to aid any prisoner in making
his escape, with intent thereby to facilitate the escape
of any prisoner confined therein, is punishable as
follows:
1. If such prisoner was confined upon any charge
or conviction of felony, by imprisonment in a state
prison not exceeding ten years;
2. If such prisoner was confined otherwise than
upon a charge or conviction of felony, by imprison-
ment in a county jail not exceeding one year, or by
a fine of five hundred dollars, or both.
S 143. Every person who knowingly and willfully
conceals any prisoner, who, having been confined in
prison upon a charge or conviction of misdemeanor,
has escaped therefrom, is guilty of misdemeanor.
S 144. Every person who willfully assists any
escape from prisoner in escaping or attempting to escape from
the custody of any officer or person having the law-
ful charge of such prisoner under any process of law
or under any lawful arrest, is guilty of a misde-
Prison"
defined.
meanor.
$ 145. The term "prison" in this chapter includes
state prisons, county jails and every place designated
by law for the keeping of persons held in custody
under process of law, or under any lawful arrest.
OF THE STATE OF NEW YORK.
45
defined.
S 146. The term "prisoner" in this chapter includes "Prisoner'
every person held in custody under process of law
issued from a court of competent jurisdiction whether
civil or criminal, or under any lawful arrest.
CHAPTER IV.
FORGING, STEALING, MUTILATING AND FALSIFYING
JUDICIAL AND PUBLIC RECORDS AND DOCUMENTS.
SECTION 147. Larceny, destruction, &c., of records by officers having them
in custody.
148. Larceny, destruction, &c., of records by other persons.
149. Offering false or forged instruments to be filed or recorded.
S147. Every clerk, register or other officer having
the custody of any record, map or book, or of any
paper or proceeding of any court of justice filed or
deposited in any public office, who is guilty of stealing,
willfully destroying, mutilating, defacing, altering or
falsifying or fraudulently removing or secreting the
whole or any part of such record, map, book, paper
or proceeding, or who permits any other person so to
do, is punishable by imprisonment in a state prison
not exceeding five years, and in addition thereto
forfeits his office.
S 148. Every person not an officer such as is men-
tioned in the last section, who is guilty of any of the
acts specified in that section, is punishable by impri-
sonment in a state prison not exceeding five years,
or in a county jail not exceeding one year, or by a
fine not exceeding five hundred dollars, or by both
such fine and imprisonment.
See 2 Rev. Stat., 680, §§ 69, 70.
S 149. Every person who knowingly procures or
offers any false or forged instrument to be filed, reg-
istered or recorded in any public office within this
State, which instrument, if genuine, might be filed or
registered or recorded under any law of this State
or of the United States, is guilty of felony.
Larceny,
&c., of
officers hav
destruction,
records by
ing them in
custody.
Larceny,
tion, &c.,
destruc
of records,
by other
persons.
offering
forged in-
to be filed or
false or
struments
recorded.
46
THE PENAL CODE
Perjury
defined.
CHAPTER V.
PERJURY AND SUBORNATION OF PERJURY.
SECTION 150. Perjury defined.
151. "Oath" defined.
152. Oath of office.
153. Irregularities in the mode of administering oaths.
154. Incompetency of witness no defense for perjury.
155 Witness' knowledge of materiality of his testimony not
necessary.
156. Making of deposition, &c., when deemed complete.
157. Statement of that which one does not know to be true.
158. Punishment of perjury.
159. Summary committal of witnesses who have committed
perjury.
160. Witnesses necessary to prove the perjury, may be bound
over to appear.
161. Documents necessary to prove such perjury may be detained.
162. Subornation of perjury defined.
163. Punishment of subornation.
164. Convict of perjury declared incompetent as a witness.
S150. Every person who, having taken an oath
that he will testify, declare, depose or certify truly
before any competent tribunal, officer or person, in
any of the cases in which such an oath may by law
be administered, willfully and contrary to such oath,
states as true any material matter which he knows
to be false is guilty of perjury.
"
Proposed modification of the law.-The definition of per-
jury given in the Revised Statutes, was as follows:
'Every person who shall willfully and corruptly swear,
testify, or affirm falsely, to any material matter, upon any
oath, affirmation or declaration, legally administered:
"1. In any matter, cause or proceeding depending in
any court of law or equity, or before any officer thereof;
"2. In any case where an oath or affirmation is re-
quired by law, or is necessary for the prosecution or
defense of any private right, or for the ends of public
justice;
"3. In any matter or proceeding before any tribunal or
officer created by the constitution or by law, or where
any oath may be lawfully required by any judicial, execu-
tive or administrative officer."
OF THE STATE OF NEW YORK.
47
"Shall upon conviction be adjudged guilty of perjury,"
&c., 2 Rev. Stat., 681, § 1.
This was a considerable extension of the common law
definition, which embraced only cases in which the false
testimony was given in a judicial proceeding. But the
enlarged definition given by the Revised Statutes appears
to have been overlooked by subsequent legislatures. For
a practice has grown up of making express provision in
statutes authorizing any new mode of investigation or
inquiry, that false testimony given under the statute shall
be perjury.
The following are the leading instances of such pro-
visions:
Laws of 1829, ch. 368, § 9. This act authorizes the
canal board to subpoena witnesses to be examined before
them when the interests of the State require it; and
section 9 declares willful false swearing before the board
to be perjury.
Laws of 1834, ch. 201, § 7. The act authorizes ar
examination to be instituted by the superintendent of
the Onondaga salt springs; and the section cited declares
false swearing upon such examination to be perjury.
In the later act concerning the salt springs (Laws of
1859, ch. 346), an examination is authorized as in the act
of 1834, ch. 201; but the unnecessary provision declaring
false swearing perjury, is omitted.
Laws of 1837, ch. 150, § 42. This statute relates to the
powers and duties of the commissioners for loaning United
States moneys, and directs the manner in which they shall
execute their trust. The section cited prescribes that “if
any person shall falsely swear or affirm in any of the cases
where an oath or affirmation is required to be taken by
this act, or shall willfully and knowingly act contrary to
any oath or affirmation he has taken in pursuance of this
act, such offense shall be deemed to be perjury.”
Laws of 1837, ch. 430, § 8, declares a party to the
record who swears falsely upon the examination autho-
rized by the usury act, guilty of perjury.
Laws of 1842, ch. 130, tit. VII, § 1. This is the statute
regulating elections. After providing that when any
person offering to vote is challenged, the inspectors shall
tender to him an oath to answer fully and truly, and shall
then put certain questions — the act declares false swear-
ing on such examination to be perjury.
Laws of 1839, ch. 389, § 1 (repealed by the act of 1842
above cited), had a provision of the same purport.
Laws of 1843, ch. 57, § 4; Laws of 1855, ch. 20, § 4.
These acts authorize chairmen of committees of common
councils, &c., to administer oaths to witnesses brought
before such committee; and declare any false swearing
in testimony so taken, to be perjury.
Laws of 1849, ch. 115, § 19. This statute makes it the
-48
THE PENAL CODE
duty of clerks of Erie county to render periodical accounts
of official fees and disbursements, the correctness of which
must be verified by affidavit. Section 19 declares every
person who shall willfully swear falsely in verifying any
such account, guilty of perjury.
Laws of 1854, ch. 332, § 8. This declares willful false
swearing to any oath or affidavit which may be lawfully
required by any rules and regulations of certain canal
officers, to be perjury.
Laws of 1854, ch. 398, tit. III, § 3. This act provided
for an enrollment of the militia; and authorized any
person who claimed exemption from duty to file an affi-
davit of the facts, as the basis of an examination of his
claim, to be made by assessors; and the section cited
declares that to swear falsely in such affidavit is perjury.
Laws of 1859, ch. 44, tit. IV, § 6. This section autho-
rizes the trustees of the village of Monrovia to examine,
on oath, any property owner claiming a reduction of taxes;
and declares willful false swearing on such examination
to be perjury.
Laws of 1859, ch. 380, §§ 13, 14. This is the registry
act for the city of New York. It authorizes certain
questions to be put to electors, under oath, by inspectors
of election and by the board of registration. The sec-
tions cited declare false swearing perjury.
Laws of 1859, ch. 470, § 7. This statute provides for
the sale of certain lands belonging to the State, and
directs officers therein named to file reports verified by
affidavit. Section 7 makes all false swearing under any
of the provisions of the act perjury.
Laws of 1860, ch. 259, § 25. The statute is amendatory
of the Metropolitan Police Commissioners' act. The
twenty-fifth section, after empowering the board of Met-
ropolitan Police Commissioners to subpoena witnesses, &c.,
declares false swearing by a witness, upon any necessary
proceeding under the regulations established by the com-
missioners, perjury.
Laws of 1860, ch. 465, § 4, declares witnesses testifying
falsely before the commissioners appointed to ascertain
and collect the damages caused by destruction of property
at Quarantine grounds on Staten Island, in Sept., 1858,
guilty of perjury.
Laws of 1863, ch. 90, § 15. The act, which is for the
protection and improvement of the Tonawanda band of
Seneca Indians, authorizes oaths to be administered for
several purposes; and provides in section 15 that willful
false swearing by any person to whom any oath may be
administered, according to the act, shall be deemed perjury.
It is obvious that by force of the definition of perjury
contained in the Revised Statutes, false swearing upon
the examination or proceeding authorized by either of the
OF THE STATE OF NEW YORK.
*49
above-mentioned statutes would have been punished as
perjury, without any express provision to that effect in
the statute authorizing the proceeding. Yet, either from a
want of clearness in the general definition, or from the
fact that under the Revised Statutes there still remained
cases in which false swearing was not perjury—e. g., the
case of mere voluntary oaths. (See People v. Travis, 1
Park. Cr., 213, where it is held that perjury cannot be
assigned of a false oath to a protest taken before a
notary public as part of the preliminary proofs of loss
under a policy of marine insurance.) The penalty of per-
jury has been declared again and again; of course giving
rise to a question in respect to similar statutes in which the
express declaration may be omitted, whether perjury can
be alleged of a violation of the statute oath. To simplify
the existing law and expunge from the statute book these
multiplied provisions covering so nearly the same ground,
the commissioners propose, by a subsequent section (in-
serted in the chapter entitled "of other offenses against
public justice," to declare it a misdemeanor to administer
or to take any oath except in the cases there specified.
And they propose by the sections in the text to extend
the penalties of perjury to violation of all judicial oaths
authorized by law, as well as to violations of oaths required.
Testify, declare, depose or certify." It is not intended
to confine the definition of perjury to testimony and
depositions, properly so called; on the contrary, it is the
intention of the commissioners to frame a section which
shall embrace every class of statement which, by law,
may be attested by an oath applying to the particular
statement in distinction from the general oath taken by
public officers. Nearly every mode of oral statement
under oath is embraced by the term "testify;" and nearly
every written one in the term "depose." But as doubts
may arise as to the full extension of these terms, iu
peculiar cases the commissioners have added "declare"
and "certify," in order that all modes of statement may
be clearly included.
((
defined.
$151. The term "oath," as used in the last section, "Oath"
includes an affirmation, and every other mode of
attesting the truth of that which is stated, which is
authorized by law.
The modes of administering oaths and affirmations in
various cascs, are prescribed by Rep. Code Civ. Pro., §§
1873, 1878.
S 152. So much of an oath of office as relates to
the future performance of official duties is not such
an oath as is intended by the previous sections.
Oath of
office
7
50
THE PENAL CODE
Irregulari-
ties in the
The definition of perjury cannot properly include the
violation of an oath of office by misconduct in the office.
The official oath serves a valuable purpose in giving point
and depth to the sense of the public duty which every
person entrusted with the discharge of official responsi-
bilities owes to the community. But it cannot be a
convenient mode of punishing official misconduct to treat
it as involving a breach of the oath of office, punishable
as perjury. The act which violates the official duty
should be declared criminal, and the punishment should
be affixed to the act itself. The case covered by the
provisions of 1 Rev. Stat., 199, 200, §§ 14, 15, which
direct that certain surveyors shall take and file the oath
required by the constitution—i. e., an oath that they
will faithfully discharge the duties of the office-and
declare that in case any surveyor shall willfully and
knowingly make a false return of the survey by him
made, &c., he shall be deemed guilty of perjury — is
treated by the commissioners upon this principle. It
may be truly said that making a false return is a violation
of the duties of the office, and so is a breach of the
official oath, yet the commissioners do not extend the
penalty of perjury to a false report made in violation of
an official oath merely; but reserve that species of offense
to be covered by a section declaring it a misdemeanor for
any official surveyor to make a report knowing it to be
false.
§ 153. It is no defense to a prosecution for perjury
mode of ad- that the oath was administered or taken in an irregu-
ministering
oaths.
lar manner.
Two classes of cases are important to be considered
one class is, where an oath is administered in an irregu-
lar manner, but the person taking it supposes at the time
that all the formalities of law are being complied with.
Such were the circumstances in People v. Cook (4 Seld.,
67), where challenged voters were sworn upon a copy of
Watts' Psalms and Hymns; the book being supposed to
be the Bible. As to these cases, the decision in People
v. Cook is, that the oath is valid, and the party is as
amenable to the consequences of perjury as if it had
been administered in strict conformity to the statute.
Another class of cases is, where the person taking the
oath evades some formality of the oath with intent to
escape its obligation; as where he kisses his thumb
instead of the book. In these cases his fraud should not
be permitted to secure him against punishment. The
section in the text therefore prescribes the same rule for
both classes.
OF THE STATE OF NEW YORK.
51
tency of
witness no
perjury.
defense for
S 154. It is no defense to a prosecution for perjury Incompe-
that the accused was not competent to give the testi-
mony, deposition or certificate of which falsehood is
alleged. It is sufficient that he actually was received
to give such testimony or make such deposition or
certificate.
See Van Steenberg v. Kortz, 10 Johns., 167.
knowledge
of mater
ality of his
testimony
not neces-
sary.
S 155. It is no defense to a prosecution for perjury Witness'
that the accused did not know the materiality of the
false statement made by him; or that it did not in
fact affect the proceeding in or for which it was made.
It is sufficient that it was material, and might have
been used to affect such proceeding.
$ 156. The making of a deposition or certificate is
deemed to be complete, within the provisions of this
chapter, from the time when it is delivered by the
accused to any other person with intent that it be
uttered or published as true.
S 157. An unqualified statement of that which one
does not know to be true is equivalent to a statement
of that which one knows to be false.
See, in support of the rule prescribed in this section,
People v. McKinney, 3 Park. Cr., 511; Bennett v. Jud-
son, 21 N. Y., 238; Commonwealth v. Cornish, 6 Binn.,
249; Steinman v. McWilliams, 6 Penn. St., 170; and,
opposed to it, United States v. Shellmire, Baldw., 370.
Making of
&c. when
complete.
deposition,
deemed
Statement
which one
of that
does not
know to be
true.
S 158. Perjury is punishable by imprisonment in a Punish-
state prison as follows:
1. When committed on the trial of an indictment
for felony, by imprisonment not less than ten years;
2. When committed on any other trial or proceed-
ing in a court of justice, by imprisonment for not
more than ten years;
3. In all other cases by imprisonment not more
than five years.
2 Rev. Stat., 681, § 2, modified. The section of the
Revised Statutes cited, prescribed imprisonment for not
less than ten years as the punishment for perjury com-
ment of
perjury.
'52
THE PENAL CODE
Summary
committal
of wit-
nesses who
have com-
mitted
perjury.
Witnesses
necessary
perjury may
be bound
over to
appear.
mitted on the trial of an indictment for felony, and impri-
sonment for not more than ten years for perjury com-
mitted in any other case. As the commissioners have
reported a definition of perjury which may embrace some
cases of false swearing which were not punishable under
the definition given in the Revised Statutes; they have
thought it proper to restrict the punishment which may
be inflicted for the new offenses, within somewhat nar-
rower limits. They, therefore, prescribe imprisonment
for not more than ten years for perjury committed before
a court of justice, except upon trial for felony, and impri-
sonment for not more than five years for all other cases.
$159. Whenever it appears probable to any court
of record that any person who has testified in any
action or proceeding in such court has committed
perjury, such court may immediately commit such
person by an order or process for that purpose to
prison, or take a recognizance with sureties for his
appearing and answering to an indictment for per-
jury.
Compare 2 Rev. Stat., 681, § 5.
$160. Such court shall thereupon bind over the
to prove the witnesses to establish such perjury to appear at the
proper court to testify before the grand jury, and
upon the trial in case an indictment is found for such
perjury; and shall also cause immediate notice of
such commitment or recognizance, with the names
of the witnesses so bound over, to be given to the
district attorney of the county.
Documents
necessary
to prove
such per
jury may be
detained.
2 Rev. Stat., 681, § 6.
S 161. If, upon the hearing of such action or pro-
ceeding in which such perjury has probably been
committed, any papers or documents produced by
either party shall be deemed necessary to be used on
the prosecution for such perjury, the court may by
order detain such papers or documents from the party
producing them, and direct them to be delivered to
the district attorney.
2 Rev. Stat., 682, § 7.
OF THE STATE OF NEW YORK.
53
tion of
S 162. Every person who willfully procures another Suborna.
person to commit any perjury is guilty of subornation perjury
of perjury.
2 Rev. Stat., 681, § 3.
defined.
of suborna-
$ 163. Every person guilty of subornation of perjury Punishment
is punishable in the same manner as he would be if tion.
personally guilty of the perjury so procured.
2 Rev. Stat., 681, § 4.
S 164. No person who has been convicted of perjury,
or of subornation of perjury, shall thereafter be re-
ceived as a witness in any action, proceeding or mat-
ter whatever upon his own behalf; nor in any action
or proceeding between adverse parties, against any
person who shall object thereto, until the judgment
against him has been reversed. But where such per-
son has been actually received as a witness contrary
to the provisions of this section, his incompetency
shall not prejudice the rights, innocently acquired, of
any other person claiming under the proceeding in
which such person was so received.
Modification of the existing rule.—As the statute defining
the powers of the commissioners of the Code expressly
excludes from their consideration the law of evidence;
and as the commissioners of practice and pleading have
already (Rep. Code Civ. Pro., § 1708) recommended the
adoption of a general rule that those who have been
convicted of crime shall not be excluded as witnesses, the
commissioners would not suggest the above section, were
the rule which it embodies a new one in our jurisprudence.
But a rule even broader than that here stated, has been
so long established, and seems so just and reasonable an
exception to the general principle enunciated in the Code
of Civil Procedure, that it appears proper to recall it to
the attention of the legislature.
The section in the text is suggested as a substitute for
the provision of 2 Rev. Stat., 681, § 1, which forbade a con-
victed perjurer from being received as a witness "in any
matter or cause whatever." This latter language seems
broad enough to disqualify a convicted perjurer from prov-
ing the execution of a deed, or testifying upon any similar
ex parte proceeding. It is obvious that the rule of exclu-
sion, if pressed to this extent, in cases where the interests
of third persons are affected, cannot fail to result in injus-
tice; inasmuch as the only method of enforcing it, where the
Convict of
declared in-
wit-
perjury
competent
uess.
54
THE PENAL CODE
testimony is taken ex parte, is by declaring the proceeding
taken, to be null and void for the incompetency of the
witness afterwards proved. In the case of a convict
produced as a witness by another person, the party who
produces him cannot be regarded as any more chargeable
with his previous perjury, or even with notice of it, than
the person to be affected by his testimony. The rule
should therefore be limited to contested proceedings, and
the party against whom the convict is called, should be
required to interpose objection, seasonably, to the exami-
nation. Where the convict comes forward as a witness
in his own behalf. e. g., to verify a petition for his own
discharge in insolvency, the above reason for limiting the
rule does not apply.
Constitutionality of the rule.—The commissioners havo
noticed that the language in which the pardoning power
vested in the Governor is defined by the constitution of
1846, suggests a possible objection to the rule of dis-
qualification, in so far as it applies to exclude a convict
of perjury who has been pardoned. By the Revised
Statutes, such person remains disqualified notwithstanding
the pardon; and this has been the familiar rule in this
State from the earliest period. The provision is bor-
rowed from the Stat., 5 Eliz., ch. 9. It was enacted in
this State in 1788 (2 Greenl. L., 36, § 1; 2 Jones & V.,
207, § 1), and was reenacted in 1801 (1 Kent & R., 313,
§ 1 1 Webst. & S., 313, § 1; 1 Laws of 1813, 171, § 1),
and again in the Revised Statutes; and the commissioners
are not aware that it was ever questioned as an uncon-
stitutional restriction upon the pardoning power. The
constitution of 1846, however, confers the pardoning
power upon the Governor in these words: "The Gov-
ernor shall have the power to grant reprievos, commu-
tations and pardous after conviction for all offenses except
treason aud cases of impeachment, upon such conditions
and with such restrictions and limitations as he may think
proper, subject to such regulation as may be provided by law
relative to the manner of applying for pardons" (art. IV, §
5). The words in italic are new in the constitution, though
the legislature conferred upon the Governor the power
to impose conditions, in substantially the same language,
by a very early statute. (Act of March 12, 1794; 3 Greenl.,
113; 1 Kent & R., 158; 1 Laws of 1813, 126; 2 Rev.
Stat., 745, § 21.) And the objection anticipated is that
these words exclude any power on the part of the legis-
lature to impose any restriction or limitation upon pardons
except such as relates to the manner of applying for them,
and that the rule which disqualifies a convicted perjurer,
notwithstanding pardon, is in effect a restriction or limi-
tation upon the effect of the pardon.
The commissioners are of opinion, however, that in
1
OF THE STATE OF NEW YORK.
55
view of the long-established and unquestioned practice
in this State, the rule is not to be regarded as a restriction
upon the pardon, but rather as an incompetency or dis-
qualification based upon public policy, and which it is in
the power of the legislature to impose or remove. It is
analogous in this respect to the rule prohibiting the dis-
closure by physicians, clergymen, &c., of communications
made to them in professional confidence. The provision
that no pardon of a person sentenced to imprisonment
for life shall restore him to the rights of a previous mar-
riage, &c. (2 Rev. Stat., 139, § 7), trenches even more
closely upon the executive power than the rule retaining
the disqualification to testify. Certainly, no innovation
upon the existing rule could have been intended by the
framers of the constitution of 1846. In introducing
the clause relating to conditions, the intention was to
express in the constitution the power already long estab-
lished by statute, whereby the Governor might impose
a condition or grant a qualified pardon in cases where he
considered the offender undeserving of an unconditional
one. And the clause respecting regulations relative to
the manner of applying for pardons, was intended to
enable the legislature to protect the community by re-
quiring such modes of obtaining pardons to be pursued
as should ensure full information of all relevant facts
being brought before the Governor. Neither clause was
designed to curtail the well-established legislative rule
which retained the disqualification of a convict of per-
jury, notwithstanding a pardon granted.
CHAPTER VI.
FALSIFYING EVIDENCE.
SECTION 165. Offering false evidence.
166. Deceiving a witness.
167. Preparing false evidence.
168. Destroying evidence.
169. Preventing or dissuading witnesses from attending.
170. Bribing witnesses.
false evi-
S 165. Every person who, upon any trial, proceed- offering
ing, inquiry or investigation whatever, authorized by dence.
law, offers in evidence, as genuine, any book, paper,
document, record, or other instrument in writing,
knowing the same to have been forged, or fraudu-
lently altered, is punishable in the same manner as
56
THE PENAL CODE
Deceiving a
witness.
Preparing
false evi-
dence.
Destroying
evidence,
Preventing
or dissuad-
ing witness
the forging or false alteration of such instrument is
made punishable by the provisions of this Code.
S 166. Every person who practices any fraud or
deceit, or knowingly makes or exhibits any false.
statement, representation, token or writing, to any
witness or person about to be called as a witness,
upon any trial, proceeding, inquiry or investigation
whatever, proceeding by authority of law, with intent
to affect the testimony of such witness, is guilty of
misdemeanor.
S 167. Every person guilty of preparing any false
book, paper, record, instrument in writing, or other
matter or thing, with intent to produce it, or allow
it to be produced for any fraudulent or deceitful pur-
pose, as genuine, upon any trial, proceeding or inquiry
whatever, authorized by law, is guilty of felony.
The Tracy Pecrage case (10 Cl. & F., 154), though in-
volving no points of criminal law, supplies an illustration
relevant to this subject. In that case a claimant to a
peerage produced manuscript entries in a prayer book,
alleged to be of ancient date; and, at a very late stage
of the proceeding, called witnesses to testify to an in-
scription upon a tombstone, tending to make out the
pedigree necessary to the claimant's case. The tomb-
stone itself could not be produced; and, the circum-
stances of the case involving suspicion, the claim was
dismissed; Lord CAMPBELL expressing his conviction that
the case was founded on fraud and forgery.
S 168. Every person who, knowing that any book,
paper, record, instrument in writing, or other matter
or thing, is about to be produced in evidence upon
any trial, proceeding, inquiry or investigation what-
ever, authorized by law, willfully destroys the same,
with intent thereby to prevent the same from being
produced, is guilty of misdemeanor.
Compare a statute of New Jersey upon this sub-
ject; Elmer's Digest, 113, § 60; Nixon's Digest, 188,
8 69.
S 169. Every person who willfully prevents or dis-
from atten- suades any person who has been duly summoned or
ding.
OF THE STATE OF NEW YORK.
57
subpenaed as a witness from attending, pursuant to
the summons or subpoena, is guilty of a misdemeanor.
witnesses.
$ 170. Every person who gives or offers or pro- Bribing
mises to give, to any witness or person about to be
called as a witness, any bribe, upon any understand-
ing or agreement that the testimony of such witness
shall be thereby influenced, or who attempts by any
other means fraudulently to induce any witness to
give false testimony or to withhold true testimony,
is guilty of a misdemeanor.
CHAPTER VII.
OTHER OFFENSES AGAINST PUBLIC JUSTICE.
SECTION 171. Injury to records and embezzlement committed by minis-
terial officers.
172. Permitting escapes, and other unlawful acts, committed by
ministerial officers.
173. Officer refusing to receive prisoner into his custody.
174. Delaying to take person arrested for crime before a magis-
trate.
175. Making arrests, &c., without lawful authority.
176. Misconduct in executing search warrant.
177. Refusing to aid officer in making an arrest.
178. Refusing to make an arrest.
179. Resisting execution of process, aiding escapes, &c., in
county which has been proclaimed in insurrection.
180. Obstructing public officer in the discharge of his duty.
181. Taking extra judicial oaths.
182. Administering extra judicial oaths.
183. Compounding crimes.
184. Compounding prosecutions.
185. Attempting to intimidate judicial or ministerial officers,
jurors, &c.
186. Suppressing evidence.
187. Buying lands in suit.
188. Buying pretended titles.
189. Mortgage of lands under adverse possession not prohibited.
190. Common barratry defined.
191. Declared a misdemeanor.
192. What proof is required.
193. Interest.
194.. Buying demands or suit by an attorney.
195. Buying demands by a justice or constable, for suit before a
justice.
196. Lending money upon claims delivered for collection.
8
58
THE PENAL CODE
Injury to
records and
embezzle-
ment com-
mitted by
ministerial
officers.
Permitting
escapes and
other un-
SECTION 197. Forfeiture of office.
198. Receiving claims in what cases allowable.
199. Application of previous sections to persons prosecuting in
person.
200. Witness' privilege restricted.
201. Criminal contempts.
202. Renewing application to stay trial of an indictment, with-
out leave.
203. Grand juror acting after challenge has been allowed.
204. Disclosure of depositions taken by a magistrate.
205. Disclosure of depositions returned by grand jury with pre-
sentment.
206. Fraud in applying for insolvent's discharge.
207. Racing near a court.
208. Selling liquor in court houses or prisons, or near election polls,
209. Misconduct by attorneys.
210. Permitting attorney's name to be used.
211. In what cases lawful.
212. Fraudulent pretenses relative to birth of infant.
213. Substituting one child for another.
214. Importing foreign convicts.
215. Omission of duty by public officer.
216. Commission of prohibited acts.
217. Disclosing fact of indictment having been found.
218. Grand juror disclosing what transpired before the grand jury.
219. Instituting suit in false name.
220. Maliciously procuring search warrant.
221. Unauthorized communications with convict in state prison.
222. Neglect to return names of constables.
223. False certificates by public officers.
S 171. Every sheriff, coroner, clerk of a court, con-
stable or other ministerial officer, and every deputy
or subordinate of any ministerial officer, who either:
1. Mutilates, destroys, conceals, erases, obliterates
or falsifies any record or paper appertaining to his
office; or,
2. Fraudulently appropriates to his own use or to
the use of another person, or secretes with intent to
appropriate to such use, any money, evidence of debt
or other property entrusted to him in virtue of his
office,
Is guilty of felony.
S 172. Every sheriff, coroner, clerk of a court, con-
lawful acts stable, or other ministerial officer, and every deputy
committed
by ministe-
rial officers. or subordinate of any ministerial officer, who either:
OF THE STATE OF NEW YORK.
59
1. Allows any person lawfully held by him in cus-
tody to escape or go at large, except as may be
permitted by law; or,
2. Receives any gratuity or reward, or any security
or promise of one, to procure, assist, connive at or
permit any prisoner in his custody to escape, whether
such escape is attempted or not; or,
3. Commits any unlawful act tending to hinder
justice,
Is guilty of misdemeanor.
See 2 Rev. Stat., 684, § 18.
S 173. Every officer who, in violation of a duty im-
posed upon him by law as such officer to receive into
his custody any person, as a prisoner, willfully neglects
or refuses so to receive such person into his custody,
is guilty of a misdemeanor.
See 2 Rev. Stat., 684, § 18.
S 174. Every public officer or other person having
arrested any person upon any criminal charge, who
willfully and wrongfully delays to take such person
before a magistrate having jurisdiction to take his
examination, is guilty of a misdemeanor.
This section is intended to enforce the well understood
duty of officers or private persons who have made arrests.
The arrested person is entitled to a speedy hearing upon
the charge preferred against him. The subject might
indeed be considered covered so far as public officers are
concerned, by the general provision elsewhere reported
(§ 215), making it a misdemeanor for an officer willfully
to omit an official duty. But there would still remain
cases in which a private person is authorized to make an
arrest. The commissioners deem it the safer course to
make express provision upon the subject.
$ 175. Every public officer or person pretending to
be a public officer, who, under the pretense or color
of any process or other legal authority, arrests any
person, or detains him against his will, or seizes or
levies upon any property, or dispossesses any one of
any lands or tenements, without a regular process
officer re-
receive
intody.
fusing to
prisoner
his
Delaying to
son arrest-
magistrate.
take per-
ed before a
Making ar-
without
thority.
rests, &c.,
lawful au-
60
THE PENAL CODE
Misconduct
in execut-
ing search
warrant,
Refusing to
aid officer
an arrest,
or other lawful authority therefor, is guilty of a mis
demeanor.
2 Rer Stat., 692, § 11.
S 176. Every peace officer, who, in executing a
search warrant, willfully exceeds his authority, or
exercises it with unnecessary severity is guilty of a
misdemeanor.
Rep. Code Gr. Pro., § 882.
S 177. Every person, who, after having been law-
in making fully commanded to aid any officer in arresting any
person, or in retaking any person who has escaped
from legal custody, or in executing any legal process,
willfully neglects or refuses to aid such officer is guilty
of a misdemeanor.
Refusing to
make an
arrest.
Resisting
execution
aiding es-
capes, &c.,
in county
which has
been pro
claimed in
insurrec-
This section is suggested as a substitute for sections
86 and 981 of the Rep. Code Cr. Pro. For the various
cases in which a private citizen may lawfully be called
upon to aid in an arrest, &c., see Rep. Code Cr. Pro.,
§§ 64, 84, 92, 167, 180, 86S, 980, 982.
$178. Every person, who, after having been law-
fully commanded by any magistrate to arrest another
person, willfully neglects or refuses so to do, is guilty
of a misdemeanor.
S 179. Every person, who, after proclamation issued
of process; by the governor declaring any county to be in a state
of insurrection, resists or aids in resisting the execu-
tion of process in the county declared to be in a state
of insurrection, or who aids or attempts the rescue or
escape of another from lawful custody or confinement,
or who resists or aids in resisting a force ordered out
by the governor to quell or suppress an insurrection,
is punishable by imprisonment in the state prison for
not less than two years.
tion.
Obstructing
public offi-
cer in the
discharge of
his duty.
Rep. Code Cr. Pro., § 99.
S 180. Every person who willfully delays or ob-
structs any public officer in the discharge or attempt
to discharge any duty of his office is guilty of a
misdemeanor.
!
1
OF THE STATE OF NEW YORK.
61
extra judi-
S 181. Every person who takes an oath before an Taking
officer or person authorized to administer judicial cial oaths.
oaths, except when such oath is required or autho-
rized by law, or is required by the provisions of some
contract as the basis of or in proof of a claim, or
when the same has been agreed to be received by
some person as proof of any fact, in the performance
of any contract, obligation or duty, instead of other
evidence, is guilty of a misdemeanor.
ing extra
oaths.
S 182. Every officer or other person who adminis- Administer-
ters an oath to another person, or who makes and judicial
delivers any certificate that another person has taken
an oath, except when such oath is required or autho-
rized by law, or is required by the provisions of some
contract as a basis of or in proof of a claim, or when
the same has been agreed to be received by some
person as proof of any fact in the performance of
any contract, obligation or duty, instead of other
evidence, is guilty of a misdemeanor.
It is known that, in many cases, persons employ the
sanctity of a judicial oath to gain credence for their
statements, yet escape punishment for falsity in those
statements because the penalties of perjury do not ex-
tend to mere voluntary oaths. Sworn statements are
frequently published to advance the sales of a particular
article; or to support one side in a public controversy.
The commissioners intend, by the two sections above, to
restrict the practice of taking or administering these
voluntary oaths The provisions reported will allow
affidavits to be made in proof of loss under policies of
insurance; in proof of facts necessary to show title, be-
tween vendor and purchaser of real property; and in all
the other cases where there is an agreement to receive
them instead of pursuing the ordinary methods of legal
investigation. And by antecedent provisions of this
Code, the penalties of perjury are extended to willful
false swearing in these cases, as well as in cases where
the oath is required by law. (See § 150, and note.)
ing crimes.
S183. Every person who, having knowledge of Compound-
the actual commission of a crime or violation of
statute, takes any money or property of another, or
any gratuity or reward, or any engagement or pro-
62
THE PENAL CODE
Compound-
ing prosecu-
tions.
Attempt-
ing to in-
timidate
mise therefor, upon any agreement or understanding,
express or implied, to compound or conceal such crime,
or violation of statute, or to abstain from any prose-
cution therefor, or to withhold any evidence thereof,
is punishable as follows:
1. By imprisonment in a state prison, not exceed-
ing five years, or in a county jail, not exceeding one
year, where the crime compounded is one punishable
either by death or by imprisonment in a state prison
for life;
2. By imprisonment in a state prison, not exceed-
ing three years, or in a county jail, not exceeding
six months, where the crime compounded was pun-
ishable by imprisonment in a state prison for any
other term than for life;
3. By imprisonment in a county jail, not exceed-
ing one year, or by fine, not exceeding two hundred
and fifty dollars, or by both such fine and imprison-
ment, where the crime or violation of statute com-
pounded is a crime punishable by imprisonment in a
county jail or by fine, or is a misdemeanor, or viola-
tion of statute for which a pecuniary or other penalty
or forfeiture is prescribed.
Embodies 2 Rev. Stat., 689, §§ 17, 18; Id., 692, § 12;
Id., 897, § 40.
That the offense of compounding may extend as well
to misdemeanors as to felonies, see Jones v. Rice, 18
Pick., 440.
S 184. Every person who takes any money or pro-
perty of another, or any gratuity or reward, or any
engagement or promise therefor, upon any agree-
ment or understanding, express or implied, to com-
pound, discontinue or delay any prosecution then
pending for any crime or violation of statute, or to
withhold any evidence, in aid thereof, is guilty of a
misdemeanor.
S 185. Every person who, directly or indirectly,.
utters or addresses any threat or intimidation to any
ministerial judicial or ministerial officer,, or to any juror, referee,
judicial or
OF THE STATE OF NEW YORK.
63
jurors, &c.
arbitrator, umpire or assessor, or other person autho- officers,
rized by law to hear or determine any controversy,
with intent to induce him, contrary to his duty, either
to do, or omit or delay any act, is guilty of a misde-
meanor.
sing evi-
S 186. Every person who maliciously practices any Suppres
deceit or fraud, or uses any threat, menace or vio- dence.
lence, with intent to prevent any party to an action
or proceeding from obtaining or producing therein
any book, paper, or other matter or thing which
might be evidence, or from procuring the attendance
or testimony of any witness therein, or with intent
to prevent any person having in his possession any
book, paper, or other matter or thing which might
be evidence in such suit or proceeding, or to prevent
any person being cognizant of any fact material
thereto from producing or disclosing the same, is
guilty of a misdemeanor.
lands in
S 187. Every person who takes any conveyance of Buying
any lands or tenements, or of any interest or estate suit.
therein, from any person not being in the possession
thereof, while such lands or tenements are the sub-
ject of controversy, by suit in any court, knowing
the pendency of such suit and that the grantor was
not in possession of such lands or tenements, is
guilty of a misdemeanor.
See 2 Rev. Stat., 691, § 5; also. Wolcott v. Knight, 6
Mass., 418; Everden v. Beaumont, 7 Id., 76; Sweet v.
Poor, 11 Id., 549; Bringly v. Whitney, 5 Pick., 349; to
the effect that the purchase of a dormant title to lands
from a party not seised, by a stranger out of possession,
when made with intent to disturb the tenant in posses-
sion, constitutes the offense of maintenance and is indict-
able at common law.
tended
titles.
S 188. Every person who buys or sells, or in any Buying pre-
manner procures, or makes or takes any promise or
covenant to convey any pretended right or title to
any lands or tenements, unless the grantor thereof
64
THE PENAL CODE
1
Mortgage of
lands under
session not
or the person making such promise or covenant has
been in possession, or he and those by whom he
claims, have been in possession of the same or of the
reversion and remainder thereof, or have taken the
rents and profits thereof for the space of one year
before such grant, conveyance, sale, promise or cove-
nant made, is guilty of a misdemeanor.
2 Rev. Stat., 691, § 6.
S 189. The two last sections shall not be construed
adverse pos- to prevent any person having a just title to lands,
upon which there shall be an adverse possession,
from executing a mortgage upon such lands.
prohibited.
Common
barratry
defined.
Declared a
misdemean-
or.
What proof
is required.
Interest.
Buying de-
mands or
suit by an
attorney.
Buying de-
mands by a
Justice or
constable
for suit be
fore a jus.
tice.
Lending
money upon
claims de-
2 Rev. Stat:, 691, § 7; 1 Id., 739, § 148.
$ 190. Common barratry is the practice of exciting
groundless judicial proceedings.
§ 191. Common barratry is a misdemeanor.
S 192. No person can be convicted of common
barratry, except upon proof that he has excited suits
or proceedings at law, in at least three instances, and
with a corrupt or malicious intent to vex and annoy.
S193. Upon a prosecution for common barratry,
the fact that the accused was himself a party in inte-
rest or upon the record to any proceedings at law,
complained of, is not a defense.
S 194. Every attorney who, either directly or in-
directly, buys or is interested in buying any evidence
of debt or thing in action with intent to bring suit
thereon is guilty of a misdemeanor
$195. Every justice of the peace and every con-
stable who, directly or indirectly, buys or is interested
in buying any evidence of debt or thing in action for
the purpose of commencing any suit thereon before
a justice, is guilty of a misdemeanor.
S 196. Every attorney, justice of the peace or con-
collection, stable, who, directly or indirectly, lends or advances
livered for
OF THE STATE OF NEW YORK.
65
any money or property, or agrees for or procures any
loan or advance, to any person as a consideration for
or inducement towards committing any evidence of
debt or thing in action to such attorney, justice, con-
stable, or any other person, for collection, is guilty
of a misdemeanor.
of office.
S 197. Every person convicted of a violation of Forfeiture
either of the three preceding sections, in addition to
the punishment, by fine and imprisonment, prescribed
therefor by this Code, forfeits his office.
S 198. Nothing in the four preceding sections shall
be construed to prohibit the receiving in payment of
any evidence of debt or thing in action for any estate,
real or personal, or for any services of an attorney
actually rendered, or for a debt antecedently con-
tracted; or the buying or receiving any evidence
of debt or thing in action for the purpose of remit-
tance, and without any intent to violate the preced-
ing section.
The four sections preceding are founded upon the pro-
visions of 2 Rev. Stat., 267, §§ 235, 236; Id., 288, §§ 71–74.
The words "counsellor or solicitor" (2 Rev. Stat., 288,
SS 71-74, are omitted; because, under the existing law,
those offices are, for all purposes, within the purview of
these sections, merged in that of the attorney. The
other changes made are intended merely to attain greater
clearness, and conciseness of expression.
S 199. The provisions of sections 194, 196, and
198, relative to the buying of claims by an attorney,
with intent to prosecute them, or to the lending or
advancing of money by an attorney in consideration
of a claim being delivered for collection, shall apply
to every case of such buying a claim, or lending or
advancing money, by any person prosecuting a suit
or demand in person.
Laws of 1847, ch. 470, § 47.
Receiving
claims, in
what cases
allowable.
Application
sections to
prosecuting
of previous
persons
in person.
privilege
$ 200. No person shall be excused from testifying, Witness'
in any civil action, to any facts showing that an evi- restricted
9
66
THE PENAL CODE
Criminal
dence of debt or thing in action has been bought,
sold or received contrary to law, upon the ground
that his testimony might tend to convict him of a
crime. But no evidence derived from the examina-
tion of such person shall be received against him
upon any criminal prosecution.
Compare 2 Rev. Stat., 288, §§ 75-82. The sections of
the Revised Statutes contain provisions, in detail, ena-
bling a defendant to procure the testimony of the guilty
party in aid of a defense setting up that the purchase of
the demand in suit was contrary to law. Since the sta-
tute enabling either party to a suit to call his adversary
as a witness these special provisions are no longer neces-
sary to be retained.
Witness' privilege. It may here be remarked that section
1854, of Rep. Code Civ. Pro., prescribes the general rule
that a witness "need not give an answer which will have
a tendency to subject him to punishment for felony; nor
need he give an answer which will have a direct tendency
to degrade his character, unless it be to the very fact in
issue, or to a fact from which the fact in issue would be
presumed."
The Commissioners have retained in the Penal Code
the various provisions of the existing law whereby, in
respect to particular crimes, the privilege to refuse to
testify is removed; e. g., in respect to buying demands
for suit; duelling, &c. But they have added no new
provisions of this character. The chapter of general
provisions and explanations, at the close of this Code,
contains a section prescribing that the various provisions
of the Code, which declare that evidence obtained upon
the examination of a person as a witness shall not be
received against him in any criminal proceeding, shall
not be construed to forbid such evidence being proved
against such person upon a proceeding for perjury com
mitted in such examination.
S201. Every person guilty of any contempt of
contempts. court of either of the following kinds, is guilty of
misdemeanor:
1. Disorderly, contemptuous, or insolent behavior,
committed during the sitting of any court of justice,
in immediate view and presence of the court, and
directly tending to interrupt its proceedings, or to
impair the respect due to its authority;
2. Behavior of the like character, committed in the
OF THE STATE OF NEW YORK.
67
presence of any referee or referees, while actually
engaged in any trial or hearing, pursuant to the
order of any court, or in the presence of any jury
while actually sitting for the trial of a cause, or upon
any inquest or other proceeding authorized by law;
3. Any breach of the peace, noise or other disturb-
ance directly tending to interrupt the proceedings of
any court;
4. Willful disobedience of any process or order
lawfully issued by any court;
5. Resistance willfully offered by any person to the
lawful order or process of any court;
6. The contumacious and unlawful refusal of any
person to be sworn as a witness; or, when so sworn,
the like refusal to answer any material question;
7. The publication of a false or grossly inaccurate
report of the proceedings of any court. But no per-
son can be punished, as for a contempt, in publish-
ing a true, full, and fair report of any trial, argument,
decision, or proceeding had in court;
8. Presenting to any court having power to pass
sentence upon any prisoner under conviction, or to
any member of such court, any affidavit or testimony
or representation of any kind, verbal or written, in
aggravation or mitigation of the punishment to be im-
posed upon such prisoner, except as provided by sec-
tions 544 and 545 of the Code of Criminal Procedure.
Subd. 1, 2, 3, 4, 5, 6, and 7, of the above section, are
framed upon the existing provisions of 2 Rev. Stat.,
278, § 10. Id., 692, § 14, modified to extend to all courts,
instead of to courts of record only.
Subd. 2, is designed to extend the principles embodied
in subdivision 1, to embrace contempts committed before
referees and sheriffs and other juries. This enlarge-
ment of the present rule is demanded by the extension
of the practice of referring causes.
Subd. 7. It has been decided that a publication, pend-
ing a suit, reflecting upon the court, the parties, wit-
nesses, jurors or counsel, or intended to prejudice the
public mind in regard to the cause, is a contempt. Bay-
ard v. Passmore, 3 Leak's Penn., 438; Van Hook's case,
3 City H. Rec., 64; Noah's case, Id., 31; Respublica v.
'68
THE PENAL CODE
Renewing
application
of an indict-
ment with-
out leave.
Oswald, 1 Dall., 319; Hollingsworth v. Duane, Wall., 77,
102. But no reason is perceived for enlarging the re-
stricted provision of the Revised Statutes on the subject.
The last clause of this subdivision is, however, deemed
unnecessary by the Commissioners; inasmuch as section
2 of this Code provides that no person can be punished
criminally except as prescribed by this Code, or by some
of the statutes which it specifies as continuing in force;
and neither the Code nor any of those acts contain any
provision authorizing the punishment of a person for
publishing a true account of judicial proceedings. As,
however, the clause is found in the existing law, the
Commissioners retain it lest the omission should give rise
to the inference that a change in the law was intended.
Subd. 8, conforms to the provisions of sections 546
and 547 of the Rep. Code Cr. Pro.
S202. Every attorney or counselor-at-law who,
to stay trial knowing that an application has been made for an
order staying the trial of an indictment to a judge,
authorized to grant the same, and has been denied,
without leave reserved to renew it, makes an appli-
cation to another judge to stay the same trial, is
guilty of misdemeanor.
Grand juror
acting after
challenge
has been
allowed.
Disclosure
of deposi-
by a magis-
trate.
Rep. Code Cr. Pro., § 369.
S203. Every grand juror who, with knowledge
that a challenge, interposed against him by a de-
fendant, has been allowed, is present at or takes part
or attempts to take part in the consideration of the
charge against the defendant who interposed the
challenge, or the deliberations of the grand jury
thereon, is guilty of a misdemeanor.
Rep. Code Cr. Pro., § 244.
S 204. Every magistrate or clerk of any magis-
tions taken trate who willfully permits any deposition taken on
an information or examination of a defendant before
such magistrate, and remaining in the custody of
such magistrate or clerk, to be inspected by any per-
son, except a judge of a court having jurisdiction of
the offense, the attorney-general, the district-attorney
of the county and his assistants, and the defendant
and his counsel, is guilty of a misdemeanor.
OF THE STATE OF NEW YORK.
69
of deposi-
turned by
grand jury
$ 205. Every clerk of any court who willfully per- Disclosure
mits any deposition returned by any grand jury with tions re-
a presentment made by them, and filed with such
clerk, to be inspected by any person, except the
court, the deputies or assistants of such clerk, and
the district attorney and his assistants, until after
the arrest of the defendant, is guilty of a misde-
meanor.
This section and the one preceding it are designed to
carry into effect the provisions of Rep. Code Cr. Pro.,
§§ 204, 205, and §§ 273 and 274. Both sections have
been so modified as to permit depositions to be examined
by the assistants of district attorneys.
with pre.
sentment
applying for
discharge.
S 206. Every insolvent debtor who, having applied Fraud in
to any court for a discharge from an imprisonment insolvent's
on execution, under the provisions of Part III of the
Code of Civil Procedure, Title X, Chapter I, or for a
discharge from his debts, under the provisions of
Chapter II, of the same Title, either:
1. Willfully conceals any part of his estate or
effects, or any books or writings relative thereto,
either before or after making any transfer and de-
livery of his property to a receiver appointed under
said provisions; or,
2. Willfully omits to disclose to the court, before
whom his application may be pending, any debts or
demands which he has collected, or any transfer of
his property which he has made, after presenting to
such court his application for a discharge, is guilty
of a misdemeanor.
The substance of the foregoing provisions is taken
from those of 2 Rev. Stat., 691, § 4. They are, how-
ever, adapted to the modifications in the method of ob-
taining insolvents' discharges proposed in Rep. Code of
Civ. Pro., §§ 1595-1606.
& court.
S 207. Every person concerned in any racing, run- Racing near
ning, or other trial of speed between any horses or
other animals, within one mile of the place where
any court is actually sitting, is guilty of a misde-
meanor.
2 Rev. Stat., 692, § 13.
70
THE PENAL CODE
Selling
liquor in
court
houses or
prisons or
near elec-
$208. Every person who sells any spirituous or
intoxicating liquor within, or brings with intent to
sell, or offer or expose for sale therein, any such
tion polls. liquor into, either:
Misconduct
by attor-
neys.
1. Any building established as a court house for
the holding of courts of record while any session of
such court is being held therein, except in such part
of such building not appropriated to the use of
courts or of juries attending them, in which such
sale has been authorized by a resolution of the board
of supervisors of the county; or,
2. Any building established as a jail or prison; or,
3. Any building or shed, outhouse, porch, yard or
curtilage appertaining to any building which, or any
part of which, is at the time occupied or used for
holding the polls at an election of any public officer
of this state or of the United States, or for canvas-
sing votes cast at such election,
Is guilty of misdemeanor.
Embraces provisions of 2 Rev. Stat., 291, § 95
Id., 431, § 29.
S 209. Every attorney who, whether as attorney
or as counselor, either:
1. Is guilty of any deceit or collusion, or consents
to any deceit or collusion, with intent to deceive the
court or any party; or,
2. Willfully delays his client's suit with a view to
his own gain; or,
3. Willfully receives any money or allowance for
or on account of any money which he has not laid
out or become answerable for,
Is guilty of misdemeanor, and in addition to the
punishment prescribed therefor by this Code, he for-
feits to the party injured treble damages, to be re-
covered in a civil action.
See 2 Rev. Stat., 287, §§ 69, 70.
"As attorney or as counselor." In general throughout
the Code, the Commissioners have used the word "attor.
1
OF THE STATE OF NEW YORK.
71
ney," as embracing all classes of legal practitioners,
conformably to the existing law by which both the
functions of the attorney and those of the counselor-
at-law are united in the same person. (See note to sec-
tion 198, above.) But it has been held that although
candidates for admission to the bar are now admitted as
attorneys and as counselors at the same time, yet the
offices are still distinct. (Easton v. Smith, 1 E. D. Smith,
318; Brady v. Mayor, &c., of N. Y., 1 Sandf., 559.) As
some of the acts prohibited in the above section might
be committed by one acting only as a counselor, and
who, though in fact also an attorney, had no retainer as
such in the cause to which the misconduct related, the
Commissioners have declared the acts punishable in
which ever capacity the defendant acts.
attorneys
used.
S 210. If any attorney knowingly permits any Permitting
person, not being his general law partner or a names to be
clerk in his office, to sue out any process or to
prosecute or defend any action in his name, except
as authorized by the next section, such attorney, and
every person who shall so use his name, is guilty of
a misdemeanor.
The existing law imposes a forfeiture of fifty dollars,
instead of a criminal punishment, for this species of mis-
conduct. (2 Rev. Stat., 287, § 70.) The Commissioners
recommend that the prohibition be restricted by allow
ing an attorney to permit his name to be used in the
cases specified in the following section; and that, except
as therein permitted, such use of the name be made a
misdemeanor.
cases law-
$211. Whenever an action or proceeding is autho- In what
rized by law to be prosecuted or defended in the ful.
name of the people, or of any public officer, board
of officers, or municipal corporation, on behalf of
another party, the attorney-general, or district attor-
ney, or attorney of such public officer or board or
corporation may permit any proceeding therein to be
taken in his name by an attorney to be chosen by
the party in interest.
S212. Every person who fraudulently produces an
infant, falsely pretending it to have been born of any
parent whose child would be entitled to inherit any
Fraudulent
relative to
pretenses
birth of
infant.
72
THE PENAL CODE
Substitu-
ting one
child for
another.
Importing
foreign con
victs.
real estate or to receive a share of any personal
estate, with intent to intercept the inheritance of any
such real estate, or the distribution of any such per-
sonal estate from any person lawfully entitled thereto,
is punishable by imprisonment in a state prison not
exceeding ten years.
This is substantially the provision of 2 Rev. Stat., 676,
§ 51. The Commissioners would have recommended the
enactment of a more extended provision, which should
forbid the holding out of a child as born of other than
its true parents, were it not that such an enactment
would render necessary a system of provisions regulat-
ing and legalizing the adoption of children. The subject
of adoptions is one which the Commissioners have under
consideration, and some systematic provisions relative to
it may perhaps be reported, but the topic does not come
within the Penal Code.
S 213. Every person to whom an infant has been
confided for nursing, education, or any other pur-
pose, who, with intent to deceive any parent or
guardian of such child, substitutes or produces to
such parent or guardian another child in the place
of the one so confided, is punishable by imprison-
ment in a state prison not exceeding seven years.
Founded upon 2 Rev. Stat., 677, § 52. The changes
introduced are two. The provisions of the Revised Stat-
utes is limited to cases where the infant confided to the
accused is under six years. The Commissioners are of
opinion that while the substitution may become less and
less feasible with the advancing age of the child, it is not
the less criminal, if perpetrated, because the child has
passed the age of six; and they therefore omit the restric-
tion. They also use the words "substitutes or produces,"
in place of "substitutes and produces;" in order to em-
brace cases in which the child may not be exhibited in
person to the parent or guardian.
S 214. Every owner, master or commander of any
vessel arriving from a foreign country who know.
ingly lands or permits to land at any port, city, har-
bor, or place within this state, any passenger or
hand who is a foreign convict of any crime which, if
committed within this state, would be punishable
OF THE STATE OF NEW YORK.
73
therein, without giving notice thereof to the mayor
of such city, or other principal municipal officer of
such port or place, is guilty of a misdemeanor.
Founded upon Laws of 1833, ch. 230, § 1. That act
renders the bringing within this state of any foreign
convict of felony, a misdemeanor, if done with intent to
land him or to permit him to land. The objection to this
form of the provision is that if the character of the felon
is not known to the master until after the ship has left
the foreign port, upon her voyage home, the master may
have no option but to bring him within this state.
The
provision might be relieved of injustice in its operation
in this class of cases by specifying the taking on board
of a foreign convict, with intent to bring him to this
country, as the criminal act. But this would be to de-
clare punishable an act committed without this state,
which ought only to be done in cases involving a special
necessity. The Commissioners have, therefore, allowed
masters to relieve themselves of criminal responsibility
by giving notice of the character of the passenger to the
public authorities of the place where he is landed.
The Commissioners have also substituted the word
"crime" for "felony," in view of the increasing evils
suffered by our people from the influx of foreign criminals.
of duty by
officer.
S215. Where any duty is or shall be enjoined by Omission
law upon any public officer, or upon any person public
holding any public trust or employment, every will-
ful omission to perform such duty, where no special
provision shall have been made for the punishment
of such delinquency, is punishable as a misdemeanor.
See 2 Rev. Stat., 696, §§ 38, 40. The enactment of
this provision will render it unnecessary to embrace sec-
tion 91 of the Rep. Code Cr. Pro. in this Code. That
section is as follows. "Every magistrate or officer,
authorized to keep the peace, having notice of an un-
lawful or riotous assembly, who neglects to proceed to
the place of the assembly, or as near thereto as he can
with safety, and to exercise the authority with which he
is invested for suppressing the same and arresting the
offenders, is guilty of a misdemeanor."
Commis-
$216. Where the performance of any act is pro- cion of pro-
hibited by any statute, and no penalty for the viola- hibited acts.
tion of such statute is imposed in any statute, the
doing such act is a misdemeanor.
See 2 Rev. Stat., 696, § 39.
10
74
THE PENAL CODE
Disclosing
fact of in-
dictment
found.
S 217. Every grand juror, district attorney, clerk,
having been judge, or other officer, who, excepting by issuing or
in executing a warrant to arrest the defendant, will-
fully discloses the fact of a presentment or indict-
ment having been made for a felony, until the
defendant has been arrested, is guilty of a mis-
demeanor.
Grand juror
disclosing
pired before
the grand
jury.
See Rep. Code Cr. Pro., §§ 276, 277.
S 218. Every grand juror who, except when re-
what trans- quired by a court, willfully discloses any evidence
adduced before the grand jury or anything which he
himself or any other member of the grand jury may
have said, or in what manner he or any other grand
juror may have voted on a matter before them, is
guilty of a misdemeanor.
Instituting
suit in false
name.
Maliciously
procuring
search war-
rant.
Unautho-
rized com-
munica-
tions with
convict in
state prison
Neglect to
return
names of
constables.
See Rep. Code Cr. Pro., §§ 267–269.
S 219. Every person who maliciously institutes or
prosecutes any action or legal proceeding, or makes
or procures any arrest, in the name of a person who
does not exist or has not consented that it be institu-
ted or made, is guilty of a misdemeanor.
This provision has been prepared as a substitute for 2
Rev. Stat., 550, § 1.
§ 220. Every person who maliciously, and without
probable cause, procures a search warrant to be
issued and executed, is guilty of a misdemeanor.
Rep. Code Cr. Pro., § 881.
S 221. Every person who, not being authorized by
law, or by a written permission from an inspector, or
by the consent of the warden, communicates with
any convict in any state prison, or brings into or
conveys out of any state prison any letter or writing
to or from any convict, is guilty of a misdemeanor.
See Laws of 1847, ch. 460, § 7.
S 222. Every town clerk who willfully omits to re-
turn to the county clerk the name of any person who
has qualified as constable, as required by subdivision
OF THE STATE OF NEW YORK.
75
4 of section 1021 of the Political Code, is punishable
by a fine not exceeding ten dollars.
Rep. Pol. Code, § 1022.
tificates by
cers.
$223. Every public officer who being authorized False cer-
by law to make or give any certificate or other writ- public off-
ing, knowingly makes and delivers as true any such
certificate or writing containing any statement which
he knows to be false, is guilty of a misdemeanor.
CHAPTER VIII.
CONSPIRACY.
SECTION 224. Criminal conspiracies defined.
225. Conspiracies against the peace of the state.
226. Overt act, when necessary.
$ 224. If two or more persons conspire, either:
1. To commit any crime; or,
2. Falsely and maliciously to indict another for
any crime, or to procure another to be charged or
arrested for any crime; or,
3. Falsely to move or maintain any suit, action or
proceeding; or,
4. To cheat and defraud any person of any pro-
perty by any means which are in themselves criminal
or by any means which, if executed, would amount
to a cheat or to obtaining money or property by false
pretenses; or,
5. To commit any act injurious to the public health,
to public morals, or to trade or commerce, or for the
perversion or obstruction of justice or the due admin-
istration of the laws,
They are guilty of a misdemeanor.
"
See 2 Rev. Stat., 691, § 8. Instead of the word
offense," employed in the Revised Statutes, in sub-
divisions 1 and 2, the Commissioners have used "crime."
In section 3 of this Code the Commissioners have defined
"public offense" as synonymous with "crime;" leaving
the word "offense" to be used in a broader signification,
Criminal
conspira-
cies defined
76
THE PENAL CODE
3
including the graver wrongs towards individuals which
are not cognizable by the criminal law. In the section
of the Revised Statutes "offense" is plainly used as
synonymous with "crime," and the Commissioners, in
substituting the latter, have intended no change in the
law, but merely to secure a consistent use of terms
throughout the Code.
The common law definitions of conspiracy are broader
than that given in our Revised Statutes.
Hawkins says that it is a consultation and agree-
ment between two or more persons either falsely to
charge another with a crime, punishable by law; or
wrongfully to injure or prejudice a third person, or any
body of men in any other manner; or to commit any
punishable offense by law; or to do any act with intent
to prevent the course of justice; or to effect a legal pur-
pose with a corrupt intent or by improper means. (Hawk.
P. C., ch. 72, § 2.)
Archbold defines conspiracy to be "an agreement
between two or more persons:
1. Falsely to charge another with a crime punishable
by law.
2. Wrongfully to injure or prejudice a third person, or
any body of men in any manner.
3. To commit any offense punishable by law.
4. To do any act with intent to prevent the course of
justice.
5. To effect a legal purpose with a corrupt intent, or
by improper means.
6. Combination by journeymen to raise their wages.
(Arch. Cr. Pl., 390, 1.) See section 733, infra.
In the State v. Buchanan (5 Har. & J., 317, 351), it is
said that, by a course of decisions running through a
space of more than four hundred years, from the reign
of Edw. III to the 59 Geo. III, without a single conflict-
ing adjudication, these points are clearly settled.
That a conspiracy to do any act that is criminal per se
is an indictable offense at common law.
That an indictment will lie at common law: 1. For a
conspiracy to do an act not illegal, nor punishable if done
by an individual, but immoral only. 2. For a conspiracy
to do an act neither illegal, nor immoral in an individual,
but to effect a purpose which has a tendency to prejudice
the public; e. g., a combination by workmen to raise
their wages. 3. For a conspiracy to extort money from
another or to injure his reputation by means not indicta-
ble, if practised by an individual, as by verbal defamation,
and that whether it be to charge him with an indicta-
ble offense or not. 4. For a conspiracy to cheat and
defraud a third person, accomplished by means of an act
which would not in law amount to an indictable cheat, if
effected by an individual. 5. For a malicious conspiracy
OF THE STATE OF NEW YORK.
77
to impoverish, or ruin a third person in his trade, or pro-
fession. 6. For a conspiracy to defraud a third person
by means of an act not per se unlawful, and though no
person be thereby injured. 7. For a bare conspiracy to
cheat or defraud a third person, though the means of
effecting it could not be determined on at the time.
The Revisers, in their note to the section of the Revised
Statutes, which is embodied in the section in the text,
assign the following reason for restricting the definition
of conspiracy within narrower limits than those of the
common law. "The great difficulty in enlarging the
definition of this offense consists in the inevitable result
of depriving the courts of equity of the most effectual
means of detecting fraud by compelling a discovery on
oath. It is a sacred principle of our institutions that no
man shall be compelled to accuse himself of any crime,
which ought not to be violated in any case. Yet such
must be the result, or the ordinary jurisdiction of courts
of equity must be destroyed by declaring any private
fraud when committed by two, or any concert to commit
it, criminal. Frauds and combinations to defraud consti-
tute the mass of equity business, and seldom is a case pre-
sented when there are not at least two parties to a fraud."
This was said in 1828, before the passage of the statute
authorizing the unrestricted examination of a defendant
to a bill in chancery charging fraud. That statute was
passed in 1833. It provided in substance that a defend-
ant might be compelled to answer any bill in chancery,
charging the defendant with being a party to any con-
veyance made with intent to defraud; or when the
defendant shall be charged with any fraud whatever;
but no such answer should be read in evidence against
any party thereto on any complaint or on the trial of
any indictment for the fraud charged in such bill. (Laws
of 1833, ch. 14.) To some extent the adoption of this
principle obviates the objection urged by the revisers to
a full recognition of the common law definition of con-
spiracy. But as the provisions of the Revised Statutes
have stood without objection for a long period, and are
believed to be satisfactory, in practical operation, the
Commissioners have not thought it best to enlarge them;
except that they suggest the addition of the section next
following, which is new. Their reason for refraining
from reporting new exceptious to the general rule that a
witness shall not be compelled to criminate himself, are
stated in their note to section 200 of this Code.
Other conspiracies. The Revised Statutes also contain a
section (2 Rev. Stat., 692, § 9,) declaring that no con-
spiracies other than such as are enumerated in the sta-
tute are punishable criminally. This provision is here
omitted, as unnecessary, in view of the general one to
like effect, embodied in section 2.
78
THE PENAL CODE
Conspira-
cies against
the peace
of the state.
Overt act,
when neces-
sary.
·
$ 225. If two or more persons, being out of this
state, conspire to commit any act against the peace
of this state, the commission or attempted commis-
sion of which, within this state, would be treason
against the state, they are punishable by imprison-
ment in a state prison not exceeding ten years.
S 226. No agreement except to commit a felony
upon the person of another, or to commit arson or
burglary, amounts to a conspiracy, unless some act
beside such agreement be done to effect the object
thereof, by one or more of the parties to such agree-
ment.
2 Rev. Stat., 692, § 10.
This rule is also a restriction of the rule of the com-
mon law. By that rule the gist of conspiracy is the
unlawful confederating; and the act is complete when
the confederacy is made. Any act done in pursuance of
it is no constituent part of the offense, but merely an
aggravation of it. See Commonwealth v. Judd, 2 Mass.,
329; State v. Rikey, 4 Halst., 293; State v. Buchanan, 5
Har. & J., 317, 352.
So, also, it is said that where an indictment charges an
ordinary conspiracy, it is not necessary to prove a com-
mon design between the defendants before proving the
acts of each defendant; for the acts of each defendant
are only evidence against himself, and may be the only
means of establishing the conspiracy. In high treason,
the overt act of one is the overt act of all; and therefore
a common design must, in such cases, precede the proof
of individual acts. Reg. v. Brittain, 11 L. T., 48; 3 Cox
Cr. Cas., 77.
As to whether the misdemeanor of conspiracy to com-
mit a felony is to be deemed merged in the felony when
subsequently committed, see Commonwealth v. Fisher, 5
Mass., 106; Lambert v. People, 9 Cow., 620; Rey v. But-
ton, 3 Cox Cr. Cas., 229; and 18 L. J. M. C., 19
OF THE STATE OF NEW YORK.
79
TITLE IX.
OF CRIMES AGAINST THE PERSON.
CHAPTER I. Suicide.
II. Homicide.
III. Maiming.
IV. Kidnapping.
V. Attempts to kill.
VI. Robbery.
VII. Assaults with intent to commit felony other than assaults
with intent to kill.
VIII. Duels and challenges.
IX. Assault and battery.
X. Libel.
CHAPTER I.
SUICIDE.
SECTION 227. Suicide defined.
228. No forfeiture imposed for suicide.
229. Attempting suicide.
230. Aiding suicide.
231. Furnishing weapon or drug to commit suicide.
232. Aiding attempt at suicide.
233. Mental incapacity of person aided, no defense.
234. Punishment of aiding suicide.
235. Punishment of attempting suicide or aiding an attempt.
$227. Suicide is the intentional taking of one's suicide
own life.
defined.
No for-
feiture
S 228. Although suicide is deemed a grave public
wrong, yet from the impossibility of reaching the imposed
successful perpetrator, no forfeiture is imposed.
See 2 Rev. Stat., 701, § 22.
for suicide.
ing suicide.
S 229. But every person who, with intent to take Attempt
his own life, commits upon himself any act dangerous
to human life, or which if committed upon or towards
another person and followed by death as a conse-
80
THE PENAL CODE
Aiding
suicide.
Furnishing
weapon or
drug to
commit
suicide.
Aiding
attempt at
suicide.
Mental
incapacity
of person
aided, no
defense.
Punish-
ment of
aiding
suicide.
Punish-
ment of
quence, would render the perpetrator chargeable with
homicide, is guilty of attempting suicide.
An attempt to commit suicide is a misdemeanor at
common law. And in this, as in other cases, the mere
fact of drunkenness is no excuse, if there was an actual
intent on the part of the accused to take his own life.
The fact is, however, material as bearing on the question
of intent. Rey v. Doody, 6 Cox Cr. Cas., 463.
S 230. Every person who willfully, in any manner,
advises, encourages, abets or assists another person
in taking his own life, is guilty of aiding suicide.
S 231. Every person who willfully furnishes another
person with any deadly weapon or poisonous drug,
knowing that such person intends to use such weapon
or drug in taking his own life, is guilty of aiding
suicide, if such person thereafter employs such in-
strument or drug in taking his own life.
S232. Every person who willfully aids another in
attempting to take his own life, in any manner which
by the preceding sections would have amounted to
aiding suicide if the person assisted had actually taken
his own life, is guilty of aiding an attempt at suicide.
$233. It is no defense to a prosecution for aiding
suicide, or aiding an attempt at suicide, that the
person who committed or attempted the suicide was
not a person deemed capable of committing crime.
Intended to meet the possible argument in defense of
one who assists the suicide of an insane person, &c., that
as the principal was incapable of crime, no crime was
committed by him, and therefore the abettor cannot be
deemed to have assisted a crime.
S234. Every person guilty of aiding suicide is
punishable by imprisonment in a state prison for
not less than seven years.
Corresponds with 2 Rev. Stat., 661, §7; and Id.,
662, § 20.
S 235. Every person guilty of attempting suicide,
attempting or of aiding an attempt at suicide, is punishable by
OF THE STATE OF NEW YORK.
81
suicide or
aiding an
imprisonment in a state prison not exceeding two
years, or by a fine not exceeding one thousand dol- attempt.
lars, or both.
CHAPTER II.
HOMICIDE.
SECTION 236. Homicide defined.
237. Different kinds of homicide.
238. What proof of death is required.
239. Petit treason abolished.
240. Effect of proof of a domestic or confidential relation.
241. Murder defined.
242. Design to effect death when inferred.
243. Premeditation.
244. Anger or intoxication no defense.
245. Act eminently dangerous, and evincing a depraved mind.
246. Duel fought out of this state.
247. Punishment of murder.
248. Manslaughter in first degree defined.
249. Killing unborn quick child by injury to person of mother.
250. By administering drugs, &c.
251. Punishment of manslaughter in first degree.
252. Manslaughter in second degree defined.
253. Liability of owner of mischievous animal.
254. Liability of persons navigating vessels.
255. Liability of persons in charge of steamboats.
256. Liability of persons in charge of steam engines.
257. Liability of physicians.
258. Liability of persons making or keeping gunpowder con-
trary to law.
259. Punishment of manslaughter in second degree.
260. Excusable homicide defined.
261. Justifiable homicide by public officers.
262. Justifiable homicide by other persons.
S 236. Homicide is the killing of one human being Homicide
by another.
$237. Homicide is either:
1. Murder;
2. Manslaughter;
3. Excusable homicide; or,
Justifiable homicide.
defined.
Different
kinds of
homicide.
11
82
THE PENAL CODE
What proof
of death is
required.
Petit
treason
S 238. No person can be convicted of murder or
manslaughter, or of aiding suicide, unless the death
of the person alleged to have been killed and the
fact of killing by the accused, are each established
as independent facts beyond a reasonable doubt.
To this extent the strict rule of the common law re-
quiring the finding of the body as an invariable condition
to a conviction for homicide has, by the latter cases, been
relaxed. See Ruloff' v. People, 18 N. Y. (4 Smith), 179;
compare also State of Vermont v. Davidson, 30 Vt., 377.
$239. The rules of the common law, distinguish-
abolished. ing the killing of a master by his servant, and of a
husband by his wife as petit treason, are abolished,
and these offenses are deemed homicides, punishable
in the manner prescribed by this chapter.
Effect of
proof of a
confidential
relation.
$ 240.
S
See 2 Rev. Stat., 657, § 8. In modifying the language
of the Revised Statutes upon this subject, the Commis-
sioners have not intended any change in the law, but
have simply designed to introduce such a reference to
the common law as should serve to explain why any
legislation upon the point was demanded.
Whenever the grade or punishment of
domestic or homicide is made to depend upon its having been
committed under circumstances evincing a depraved
mind or unusual cruelty, or in a cruel manner, the
jury may take into consideration the fact that any
domestic or confidential relation existed between the
accused and the person killed, in determining the
moral quality of the acts proved.
Murder
defined,
S241. Homicide is murder in the following cases:
1. When perpetrated without authority of law,
and with a premeditated design to effect the death,
of the person killed or of any other human being;
2. When perpetrated by any act imminently dan-
gerous to others and evincing a depraved mind, re-
gardless of human life, although without any pre-
meditated design to effect the death of any particular
individual ;
1
OF THE STATE OF NEW YORK.
83
3. When perpetrated without any design to effect
death, by a person engaged in the commission of
any felony.
The former definition. This section is founded on 2
Rev. Stat., 657, § 5. The definitions of the four grades
of homicide given in the Revised Statutes, though
drawn with care, and resulting, when attentively con-
sidered, in an accurate demarcation, are yet obscured
and embarrassed with references to each other, and to
the rules of the common law. The Commissioners have,
in subsequent sections, recommended a modification of
the law of manslaughter, distinguishing it into two de-
grees only, instead of four. In other respects, whenever
they have departed, in these definitions of homicide, from
the phraseology of the Revised Statutes, it has chiefly
been in order to render each definition independeut and
sufficient in itself.
Degrees in Murder. By recent statutes (Laws of 1860,
712, ch. 410, § 2, and 1862, 369, ch. 197, § 5), múrder
was divided into two degrees, the first degree only being
punishable with death. The practical result of intro-
ducing such a distinction will be that jurors influenced
by unwillingness to unite in a capital conviction, will
always find the prisoner guilty of the second degree
only. The Commissioners are of opinion that the sim-
plicity of the definition of murder in the Revised Statutes
should be restored.
S242. A design to effect death is inferred from the
fact of killing, unless the circumstances raise a rea-
sonable doubt whether such design existed.
Design to
when in-
effect death
ferred.
tion.
S 243. A design to effect death sufficient to consti- Premedita-
tute murder, may be formed instantly before com-
mitting the act by which it is carried into execution.
People v. Clark, 7 N. Y. (3 Seld.), 385.
People v. Austin, 1 Park. Cr., 154.
$244. Homicide committed with a design to effect
death is not the less murder because the perpetrator
was in a state of anger or voluntary intoxication at
the time.
People v. Johnson, 1 Park. Cr., 291.
People v. Sullivan, 7 N. Y. (3 Seld.), 396.
People v. Austin, 1 Park. Cr., 154, 167.
Anger or
tion no
intoxica-
defense.
People v. Vinegar, 2 Id., 24.
84
THE PENAL CODE
Act emi-
nently
$ 245. Homicide perpetrated by an act eminently
dangerous dangerous to others and evincing a depraved mind,
regardless of human life, is not the less murder
because there was no actual intent to injure others.
and evin-
cing a
depraved
mind.
Duel fought
out of this
state.
Punish-
ment of
murder.
Manslaugh-
ter in first
degree de-
fined.
Intended to correct the rules deemed incorrect, laid
down in People v. Sheriff of Westchester Co., 1 Park.
Cr., 659; Darry v. People, 10 N. Y. (6 Seld.), 120.
S 246. Every person who, by previous appointment
within this state, fights a duel without this state, and
in so doing inflicts a wound upon his antagonist or
any other person, whereof the person injured dies,
and every second engaged in such duel, is guilty of
murder, and may be indicted, tried and convicted in
any county of the state.
See 2 Rev. Stat., 657, § 6.
S 247. Every person convicted of murder shall
suffer death for the same.
Corresponds with 2 Rev. Stat., 656, § 1. See
notes to sections 60 and 241, above.
S 248. Homicide is manslaughter in the first degree
in the following cases:
1. When perpetrated without a design to effect
death by a person while engaged in the commission
of a misdemeanor ;
2. When perpetrated without a design to effect
death, and in a heat of passion, but in a cruel and
unusual manner or by means of a dangerous weapon;
unless it is committed under such circumstances as
constitute excusable or justifiable homicide;
3. When perpetrated unnecessarily either while
resisting an attempt by the person killed to com-
mit a crime, or after such attempt shall have failed.
Subd. 1. This clause is intended to embody the pro-
visions of 2 Rev. Stat., 661, § 6.
The words "by the act, procurement or culpable neg-
ligence of another," used in that statute, are omitted.
They are not found in the corresponding clause in the
definition of murder. (2 Rev. Stat., 657, § 5, subd. 3.
•
OF THE STATE OF NEW YORK.
85
แ
See also section 241, supra.) If the accused was com-
mitting felony when he perpetrated the homicide, it is
murder, though unintentional. If he was committing a
misdemeanor, the homicide is manslaughter in the first
degree. The sections embodying these two ideas should
correspond in language. Homicide by culpable negli-
gence is made manslaughter in the second degree, by
section 252 of this Code.
The word "misdemeanor" is substituted for the phrase
'crime or misdemeanor, not amounting to felony," that
being the exact meaning expressed by the term misde-
meanor under the definition already given in this Code.
The restriction "in cases where such killing would be
murder at the common law," is omitted because it is
deemed essential to the usefulness of the Code that its
definitions should not be dependent upon a recourse to
the common law to render them intelligible.
Subd. 2. This provision embodies two sections of the
existing law; 2 Rev. Stat., 661, §§ 10 and 12. Both
species of homicide there respectively defined as man-
slaughter in the second and third degrees, are here
brought within the first degree, in harmony with the
design of the Commissioners to simplify the law of man-
slaughter by reducing the number of its degrees.
Subd. 3. This embodies the provision of 2 Rev. Stat.,
661, § 11. The phrase "to commit a crime" is substitu-
ted for "to commit any felony or to do any unlawful
act," because the words "unlawful act" might be deemed
to embrace trespass; yet the case of homicide of a per-
son committing a trespass, is specifically declared man-
slaughter in the third degree by 2 Rev. Stat., 661, § 13.
S 249. The willful killing of an unborn quick child
by any injury committed upon the person of the
mother of such child, and not prohibited in the next
following section, is manslaughter in the first degree.
Substituted for 2 Rev. Stat., 661, § 8, the language of
which is obscure. Whether an injury to the mother
resulting in death would be murder depends wholly on
the intent, and not at all on the description of the injury.
$250. Every person who provides, supplies or ad-
ministers to any woman, whether pregnant or not, or
who prescribes for such woman, or advises or procures
any such woman to take any medicine, drug or sub-
stance whatever, or who uses or employs any instru-
ment or other means, with intent thereby to procure
the miscarriage of such woman, unless the same shall
unborn
Killing
quick child
person of
by injury to
mother.
By admin-
drugs, &c.
istering
86
THE PENAL CODE.
Punish-
ment of
have been necessary to preserve the life of such
woman, is guilty, in case the death of such woman,
or of any quick child with which she may be pregnant,
is thereby produced, of manslaughter in the first
degree.
See Laws of 1846, ch. 22, § 1.
S 251. Every person guilty of manslaughter in the
manslaugh first degree is punishable by imprisonment in a state
prison for not less than four years.
ter in first
degree.
Manslaugh-
ter in
second de-
gree defined
Liability of
owner of
mischiev-
ous animal.
Liability of
persons
vessels.
Founded upon 2 Rev. Stat., 662, § 20; but modified to
correspond with the reduction in the number of degrees
in manslaughter, introduced by the preceding provisions.
S 252. Every killing of one human being by
the act, procurement or culpable negligence of an-
other, which under the provisions of this chapter is
not murder, nor manslaughter in the first degree,
nor excusable nor justifiable homicide, is man-
slaughter in the second degree.
$ 253. If the owner of a mischievous animal,
knowing its propensities, willfully suffers it to go at
large, or keeps it without ordinary care, and such
animal, while so at large or not confined, kills any
human being who has taken all the precautions
which the circumstances permitted, to avoid such
animal, the owner is deemed guilty of manslaughter
in the second degree.
See 2 Rev. Stat., 662, § 14.
S 254. Every person navigating any vessel for
navigating gain, who willfully or negligently receives so many
passengers or such a quantity of other lading on
board such vessel, that by means thereof such vessel
sinks or is overset or injured, and thereby any human
being is drowned or otherwise killed, is guilty of
manslaughter in the second degree.
Liability of
persons in
charge of
steamboats.
See 2 Rev. Stat., 662, § 15.
S255. Every captain or other person having charge
of any steamboat used for the conveyance of passen-
OF THE STATE OF NEW YORK.
87
gers, or of the boilers and engines thereof, who,
from ignorance or gross neglect, or for the purpose
of excelling any other boat in speed, creates, or
allows to be created, such an undue quantity of
steam as to burst or break the boiler or other appara-
tus in which it shall be generated, or any apparatus
or machinery connected therewith, by which burst-
ing or breaking any person is killed, is deemed guilty
of manslaughter in the second degree.
See 2 Rev. Stat., 662, § 16.
persons in
charge of
steam en-
$ 256. Every engineer, or other person having Liability of
charge of any steam boiler, steam engine or other
apparatus for generating or employing steam, em- gines.
ployed in any manufactory, railway or other me-
chanical works, who willfully or from ignorance or
gross neglect creates, or allows to be created, such
an undue quantity of steam as to burst or break the
boiler, engine or apparatus, or to cause any other
accident whereby the death of a human being is
produced, is guilty of manslaughter in the second
degree.
physicians.
S 257. Every physician who, being in a state of Liability of
intoxication, without a design to effect death, admin-
isters any poison drug or medicine, or does any other
act as such physician, to another person, which pro-
duces the death of such other, is guilty of man-
slaughter in the second degree.
See 2 Rev. Stat., 442, § 17.
Liability of
making or
persons
keeping
contrary to
law.
§ 258. Every person guilty of making or keeping
gunpowder or saltpetre within any city or village, in
any quantity or manner such as is prohibited by law gunpowder
or by any ordinance of said city or village, in case
any explosion thereof occurs whereby any human
being is killed, is guilty of manslaughter in the second
degree.
ment of
S 259. Every person guilty of manslaughter in the Punish-
second degree is punishable by imprisonment in a manslaugh-
88
THE PENAL CODE
ter in
second
degree.
Excusable
homicide
defined.
Justifiable
homicide
by public
officers.
Justifiable
homicide
by other
persons.
state prison not more than four years, and not less
than two years, or by imprisonment in a county jail
not exceeding one year, or by a fine not exceeding
one thousand dollars, or by both such fine and im-
prisonment.
Founded on 2 Rev. Stat., 662, § 20; but modified to
correspond with the reduction in the number of degrees
in manslaughter, introduced by the preceding provisions.
$260. Homicide is excusable in the following cases:
1. When committed by accident and misfortune,
in lawfully correcting a child or servant, or in doing
any other lawful act, by lawful means, with usual and
ordinary caution, and without any unlawful intent;
2. When committed by accident and misfortune in
the heat of passion, upon any sudden and sufficient
provocation, or upon a sudden combat; provided
that no undue advantage is taken, nor any danger-
ous weapon used, and that the killing is not done in
a cruel or unusual manner.
2 Rev. Stat., 660, § 4. The verbal alterations introduced
are intended only to attain greater clearness of expression;
and not to introduce any substantive changes.
$261. Homicide is justifiable when committed by
public officers and those acting by their command in
their aid and assistance, either:
1. In obedience to any judgment of a competent
court; or,
2. When necessarily committed in overcoming ac-
tual resistance to the execution of some legal process,
or to the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons
who have been rescued, or who have escaped, or
when necessarily committed in arresting felons flee-
ing from justice.
$262. Homicide is also justifiable when committed
by any person in either of the following cases:
1. When resisting any, attempt to murder any
OF THE STATE OF NEW YORK.
89
person, or to commit any felony upon him or her, or
upon or in any dwelling house in which such person
is; or,
2. When committed in the lawful defense of such
person, or of his or her husband, wife, parent, child,
master, mistress or servant, when there is a reasona-
ble ground to apprehend a design to commit a felony,
or to do some great personal injury, and imminent
danger of such design being accomplished; or,
3. When necessarily committed in attempting, by
lawful ways and means, to apprehend any person for
any felony committed; or in lawfully suppressing any
riot; or in lawfully keeping and preserving the peace.
2 Rev. Stat., 660, § 3; substituting "any person,"
for "such person," in subdivision 1.
CHAPTER III.
MAIMING.
SECTION 263. Maiming another person defined.
264. Maiming one's self to escape performance of a duty.
265. Maiming one's self to obtain alms.
266. What injury may constitute maiming.
267. What disfigurement may constitute maiming.
268. Designing to maim, &c.
269. Premeditated design.
270. Subsequent recovery of injured person, when a defense.
271. Punishment.
*
person
§ 263. Every person who, with premeditated design Maiming
to injure another, inflicts upon his person any injury ed
which disfigures his personal appearance, or disables
any member or organ of his body, or seriously dimi-
nishes his physical vigor, is guilty of maiming.
Definitions of mayhem found in several of the more
familiar English authorities confine the offense to such
wounds as impair the powers of attack or defense; the
gravamen of the offense being deemed to consist in the
disability for self protection which it creates. (Consult 4
Blackst. Comm., 205, 150; 1 Coke, Inst., § 502.)
Earlier authorities, however, are to be found giving
the word a more extended signification. Thus, Pulton
(De Pace Regis, 1609, fol. 15, §§ 58 and 59) says: "Mai-
12
90
THE PENAL CODE
Maiming
one's self
to escape
the per-
"
"
heming is when one member of the commonweale shall
"take from another member of the same a natural mem-
"ber of his bodie, or the use and benefit thereof, and
thereby disable him to serve the commonweale by his
weapons in the time of warre, or by his labor in the
"time of peace; and also diminisheth the strength of
"his bodie, and weaken him thereby to get his own
lyving, and by that means the commonweale is in a
"L
"L
sort deprived of the use of oue of her members.'
Wounds which merely disfigured the person without
impairing the general strength or the powers of some
particular member seem to have been excluded by all the
common law definitions of mayhem; though made the
subject of several stringent enactments. In this country,
however, many of the statutes, punishing maims, em-
brace also wounds, deemed aggravated from the personal
disfigurement involved, merely. Thus, our own statute
(2 Rev. Stat., 664, § 27), without defining the term "may-
hem," imposes one and the same punishment on any per-
son who
shall cut out or disable the tongue; put out
an eye; slit the lip or nose; cut off or disable any linb,"
&c. So the Revised Statutes of Ohio embrace biting the
nose, lip or ear. (1 Rev. Stat. of Ohio, 1860, 411, § 23.) The
act of congress of 1790 (1 U. S. Stat. at L., 115, § 13), speci-
fies cutting off an ear. So in Illinois, mayhem is expressly
defined to consist in unlawfully depriving a human being
of a member of his or her body, or disfiguring or render-
ing it useless. (1 Purple's Stat. of Ill., 365, § 47.) And
there are many other statutes substantially like these, in
this respect. (Compare 2 Gavin & H. Stat. of Ind., 1862,
440, § 12; 2 Rev. Stat. of Miss., 565, § 34; Pen. Code of
La., 141, art. 235; 1 Md. Code, 235, § 121; Rev. Stat.
of Maine, 667, § 15; Rev. Code, D. C., 517, § 20; Code
of Iowa, 350, § 2577; Code of Ala., 563, § 3105; Stat. of
Conn., Comp. of 1854, 307, § 12; 1 Rev. Stat. of Ky.,
382, art. 6, § 1.) Following the example of these enact-
ments, the Commissioners have extended the penalty of
maiming to embrace wounding which either disables or
disfigures.
S264. Every person who, with design to disable
himself from performing any legal duty, existing
formance of or anticipated, inflicts upon himself any injury
whereby he is so disabled, is guilty of maiming.
a duty.
In countries burdened with a severe military conscrip-
tion, self inflicted injuries, to escape the service, are not
uncommon.
"It is curious to observe," says Foderé (Tr. de Med.
Leg., vol. 2, p. 480, cited in 1 Beck's Med. Jur., 37) “how
OF THE STATE OF NEW YORK.
91
many young men have, during the last twenty years,
worn convex glasses, in order to acquire myopia or
near-sightedness."
*
*
Ulcers," says Beck (1 Med. Jur., 50), “are frequently
induced by the use of acetate of copper quicklime, &c.
* Frauds of this description are fre-
quently attempted in hospitals or to avoid the perform-
ance of labor of every kind." And he narrates several
striking instances of this species of imposture.
The military law of France declares any individual
drafted to perform military duty who incapacitates him-
self, either temporarily or permanently, punishable by
imprisonment.
The extent to which practices of this sort have been
carried in modern Egypt is very remarkable. Mr. Ed-
ward Lane, writing in 1834, says: "There is seldom to
be found, in any of the villages, an ablebodied youth or
young man who has not had one or more of his teeth
broken out (that he may not be able to bite a cartridge),
or a finger cut off, or an eye pulled out or blinded, to
prevent his being taken for a recruit. Old women and
others make a regular trade of going about from village
to village to perform these operations upon the boys,
and the parents themselves are sometimes the operators."
(1 Lane's Mod. Egyptians, 3d ed., 294.)
St. John, writing in 1851 (Village Life in Egypt), and
Warburton (The Crescent and the Cross), give similar
accounts.
During the present war similar means are known to
have been resorted to, in some instances, to avoid mili
tary service; and this suggests the insertion of the sec-
tion.
$265. Every person who inflicts upon himself any
injury such as if inflicted upon another would consti-
tute maiming, with intent to avail himself of such
injury, to excite sympathy, or to obtain alms, or any
charitable relief, is guilty of maiming.
Maiming
to obtain
one's self
alms.
What inju-
ry may
$266. To constitute maiming it is immaterial by
what means or instrument, or in what manner, the constitute
injury was inflicted.
U. S. v. Scroggins, 1 Hempst., 478.
Baker v. State, 4 Ark., 56, 63.
$267. To constitute maiming by disfigurement the
injury must be such as is calculated, after healing, to
attract observation. A disfigurement which can only
maiming.
What dis-
may consti-
ing.
figurement
tute maim-
92
THE PENAL CODE
Designing
to maim,
&c.
Premedi-
tated de-
sign.
Subsequent
recovery of
injured
person,
when a
defense.
Punish-
ment.
he discovered by close inspection does not constitute
maiming.
State v. Girkin, 1 Ired. L., 121.
State v. Abram, 10 Ala., 928.
S 268. A design to injure, disfigure or disable, is
inferred from the fact of inflicting an injury which is
calculated to disfigure or disable, unless the circum-
stances raise a reasonable doubt whether such design
existed.
State v. Girkin, 1 Ired. L., 121.
State v. Evans, 1 Hayw., 281.
State v. Crawford, 2 Dev., 425.
$269. A premeditated design to injure, disfigure
or disable, sufficient to constitute maiming, may be
formed instantly before inflicting the wound.
The Revised Statutes required "a premeditated design
evinced, lying in wait for the purpose, or in any other
manner;" or an intent to kill or commit a felony. (2 Rev.
Stat., 664, § 27.) As, however, the words "premedita-
ted design," as used in the Revised Statutes, relative to
murder. have been construed to embrace a design formed
at the instant of the act, the Commissioners suggest the
employment of them in the same sense in reference to
maiming. That rule has been laid down in State v. Sim-
mons, 3 Ala., 497.
$270. Where it appears, upon a trial for maiming
another person, that the person injured has, before
the time of trial, so far recovered from the wound
that he is no longer by it disfigured in personal
appearance, or disabled in any member or organ of
his body, or affected in physical vigor, no conviction
for maiming shall be had; but the accused may be
convicted of assault and battery, with or without
a special intent, according to the proof.
To constitute maiming the injury should be permanent.
Where, however, the prosecution have proved a wound
inflicted by the prisoner, and effective at the time to dis-
able the person injured, it is for the prisoner to show
that the injury was only temporary. (Baker v. State, 4
Ark., 56, 64.)
S 271. Every person guilty of maiming is punisha-
ble by imprisonment in a state prison not exceeding
OF THE STATE OF NEW YORK
93
seven years, or by imprisonment in a county jail
not exceeding one year, or by fine not exceeding
one thousand dollars, or by both such fine and impri-
sonment.
The punishment prescribed by the Revised Statutes,
for maiming, is imprisonment in a state prison, not ex-
ceeding seven years. (2 Rev. Stat., 664, § 27.) As the
Commissioners have extended their definition to embrace
self-inflicted injuries, they have provided for a broader
range of judicial discretion, in respect to the punishment.
CHAPTER IV.
KIDNAPPING.
SECTION 272. Kidnapping defined.
273. Effect of consent of injured person.
274. Selling services of person of color.
275. Removing from this state persons held to service in another
state.
276. Penalty imposed on judicial officers.
defined.
$ 272. Every person who, without lawful authority, Kidnapping
forcibly seizes and confines another, or inveigles or
kidnaps another, with intent, either:
1. To cause such other person to be secretly con-
fined or imprisoned in this state against his will; or,
2. To cause such other person to be sent out of
this state against his will; or,
3. To cause such person to be sold as a slave, or
in any way held to service against his will,
Is punishable by imprisonment in a state prison
not exceeding ten years.
2 Rev. Stat., 664, § 28.
The above section embraces substantially the provi-
sions of 2 Rev. Stat., 664, § 30, and is somewhat broader
than the term "kidnapping," in the caption of the chap-
ter, would imply. That term is, by earlier writers, used
to denote the abduction of children only; and this seems its
etymological meaning. (See Philip's World of Words; Webst.
Dict.; Johns. Dict.) Many accurate authorities employ it
without respect to the age of the subject; but confine it to
an abduction committed with intent to export the person in-
jured out from his own home, state or country, to another.
94
THE PENAL CODE
Effect of
consent of
injured
person.
(See Bell's Dict: Law of Scot.; Bouvier's Law Dict.; Jacob's
Law Dict.) Thus, the Revised Statutes of Illinois (vol.
1, p. 366, §§ 54 and 55,) make false imprisonment to
consist in a confinement or detention without legal autho-
rity, and confine kidnapping to the offense of abducting
and sending to another country. The existing provisions
of our own Revised Statutes draw no such distinction.
The Commissioners have thought it best to preservo
them as they now stand. In employing the term kid-
napping as a caption to the chapter, they use it only as a
convenient title for purposes of reference, and not as
restrictive upon the definitions given of offenses prohibi-
ted.
Particular offenses, analogous to kidnapping, e. g., ab-
duction of females, and child stealing, are the subject of
some special provisions in other chapters of this Code.
In Hadden v. The People, 25 N. Y., 372, it has been
lately held that procuring the intoxication of a sailor with
the design of getting him on shipboard, without his con-
sent, and taking him on board in that condition is kid-
napping under the Revised Statutes; and that it is im-
material whether the offender did the acts, or any of
them, in person or caused them to be done.
Where the intent and expectation, in such a case, is
that the seaman will be carried out of this state, the
offense is complete, although the ship be not in fact,
destined to leave the state.
S 273. Upon any trial for a violation of the preced-
ing section the consent of the person kidnapped or
confined thereto shall not be a defense, unless it
appear satisfactorily to the jury that such person
was above the age of twelve years, and that such
consent was not extorted by threats or by duress.
See 2 Rev. Stat., 664, § 30. The above section is
deemed by the Commissioners unnecessary; but as it is
found in the existing law, and embodies a principle
clearly correct, they have hesitated to omit it, lest a
change in the law should seem to have been intended.
They have inserted the words "that such person was
above the age of twelve years;" believing that the con-
sent of a child under that age, however freely given,
should not operate as a defense.
Punishment of accessaries. Section 31, of 2 Rev. Stat.,
665, providing that every person convicted as an acces-
sary to any kidnapping or confinement hereinbefore pro-
hibited is punishable by imprisonment in a state prison,
not exceeding six years, or in a county jail, not exceeding
one year, or by a fine, not exceeding five hundred dollars,
OF THE STATE OF NEW YORK.
95
or by both such fine and imprisonment, is omitted. The
Commissioners have preferred to leave the punishment of
accessaries in kidnapping to the operation of the general
provision relative to accessaries, in section 30.
S274. Every person who, within this state or else-
where, sells or in any manner transfers, for any term,
the services or labor of any black, mulatto, or other
person of color, who has been forcibly taken or in-
veigled, or kidnapped from this state, is punishable
by imprisonment in a state prison not exceeding ten
years.
}}
See 2 Rev. Stat., 665, § 32. The words "within this
state or elsewhere are added. It was held in People v.
Merrill, 2 Park. Cr., 590, that, under the Revised Sta-
tutes, no prosecution could be maintained where the sale
was effected out of the state. The Commisioners are of
opinion that in conformity to the views relative to the
jurisdiction of the state over offenders who being out of
the state, co-operate in the commission of an offense
within it, which have been embodied in section 15 of
this Code, one who, in another state, consummates the
kidnapping of a person from this state, by selling him as
a slave, may be held amenable to the penal justice of
this state, if afterwards found within the jurisdiction
of our courts.
Limit of punishment. The Revised Statutes contain an
additional clause, allowing imprisonment in a county jail,
or fine, to be imposed. The commissioners have omitted
this clause; considering the offense deserving of im-
prisonment in a state prison, in all cases.
$275. Every person claiming that he or another is
entitled to the services of a person alleged to be held
to labor or service in a state or territory of the United
States who, except as authorized by Title V, of the
Code of Criminal Procedure, takes or removes or
willfully does any act tending towards removing
from this state any such person, is guilty of felony,
punishable by imprisonment in the state prison not
exceeding ten years, and by a penalty of five hun-
dred dollars, recoverable in a civil action by the party
aggrieved.
S 276. Every judge, or other public officer of this
state who grants or issues any warrant, certificate or
Selling
services of
person of
color.
Removing
state per
service in
from this
sons held to
another
state.
Penalty
imposed on
judicial
officers.
9.6
THE PENAL CODE
other process in any proceeding for the removal from
this state of any person claimed as held to labor or
service in a state or territory of the United States,
except in pursuance of the provisions of Part VI,
Title V, of the Code of Criminal Procedure, is guilty
of a misdemeanor; and in addition to the punishment
therefor prescribed by law, he forfeits five hundred
dollars to the party aggrieved, recoverable in a civil
action.
Embodies the provisions of Rep. Code Cr. Pro., §§ 910,
923. On comparing the provisions reported by the com-
missioners of practice and pleadings and which were found-
ed on foriner provisions of the Revised Statutes, it will be
observed that while a judge or other public officer who issues
process for the removal of a fugitive, except as permitted
by the Code of Criminal Procedure, is punishable by the
penalties of misdemeanor the claimant of the fugitive who
does any act towards his removal is guilty of felony, and
may be punished by imprisonment extending to ten years.
The commissioners do not consider this one of those
extreme cases which justify the infliction of a penalty
upon a judicial officer for an act in the nature of a judicial
decision. They are of opinion that the above section should
be omitted and the offenses specified, if flagrant enough
to demand punishment should be left to the remedy by
impeachment. If, however, a criminal penalty is to be
inflicted upon the judge at all, the propriety of making so
marked a distinction between the punishment to be inflicted
upon the claimant and that prescribed for the judge is
doubtful,
Shooting,
and assault
with deadly
CHAPTER V.
ATTEMPTS TO KILL.
SECTION 277. Administering poison.
278. Shooting and assault and battery with deadly weapons.
279. Other assaults with intent to kill.
S 277. Every person who with intent to kill, admin-
and battery isters or causes or procures to be administered to
weapons. another any poison which is actually taken by such
other, but by which death is not caused, is punishable
by imprisonment in a state prison not less than ten
years.
Founded on 2 Rev. Stat., 666, § 37.
OF THE STATE OF NEW YORK.
97
tering
$278. Every person who shoots or attempts to shoot Adminis
at another, with any kind of fire arms, air gun or poison.
other means whatever, with intent to kill any person,
or who commits any assault and battery upon another
by means of any deadly weapon, or by such other
means or force as was likely to produce death, with
intent to kill any other person, is punishable by im-
prisonment in a state prison not exceeding ten years.
This section embraces so much of 2 Rev. Stat., 665,
§ 36, as relates to attempts to kill; assaults, &c., in attempt
to commit other felonies are embraced by a subsequent
chapter.
Intent to kill a third person. The language of section 36
of 2 Rev. Stat., 655, above cited,-"any person who shall
be convicted *
of any assault and battery
upon another
with the intent to kill,
*
*
*
*
&c., such other person,"-seems to require, in order to
warrant a conviction, that the accused should have intended
a felony on the very individual assaulted. A broader
rule is recommended by the commissioners in view of the
following adjudications. The person was indicted for
wounding Y, with intent to murder him. It appeared that
he shot at Y supposing him to be M, and intending to
murder M; held he was properly convicted of wounding
Y, with intent to murder him. He intended to murder
the man at whom he shot. Reg. v Smith, 1 Jur., N. S.,
1116; 25 Law J. (M. C.), 29.
On a trial for assault and battery with intent to kill, it
appeared that the prisoner being pursued by two officers,
attempting to arrest him, fired a pistol in the direction of
both, and so near as to endanger both. He intended to
harm at least one; but was regardless which he might
harm, his object being to prevent an arrest. Held, that
he might be convicted on an indictment charging him
with an assault on two. Commonwealth v. McLaughlin,
12 Cush., 615.
The defendant fired into a crowd with intent to kill
some one, and A was wounded. Held, that this was
enough to establish an assault and battery upon A, with
intent to kill. Walker v. State, 8 Ind., 290.
And where a woman jumped out of a window for the
purpose of avoiding violence threatened by her husband,
and sustained a dangerous bodily injury, it was held that
the husband could not be convicted of an attempt to
murder, unless he intended, by his conduct, to make her
jump from the window. Reg. v. Donovan, 4 Cox Cr. Cas.,
400.
13
98
THE PENAL CODE
Other
assaults
to kill.
$279. Every person who is guilty of an assault
with intent with intent to kill any person, the punishment for
which is not prescribed by the foregoing section, is
punishable by imprisonment in a state prison for a
term not exceeding five years, or in a county jail
not exceeding one year, or by a fine not exceeding
five hundred dollars, or by both such fine and im
prisonment.
Embraces so much of 2 Rev. Stat., 666, § 39, as relates
to assaults with intent to kill.
Robbery
defined.
CHAPTER VI.
ROBBERY.
SECTION 280. Robbery defined.
281. How force or fear must be employed.
282. Degree of force immaterial.
283. What fear may be an element in robbery.
284. Value of property taken, immaterial.
285. Taking of property secretly, not robbery.
286. Two degrees of robbery.
287. Punishment of robbery in first degree.
288. Punishment of robbery in second degree.
289. Punishment of robbery committed by two or more persons.
S 280. Robbery is a wrongful taking of personal
property in the possession of another, from his per-
son or immediate presence, and against his will,
accomplished by means of force or fear.
แ
This definition embodies substantially the elements
suggested by 2 Rev. Stat., 677, §§ 55, 56; the word
wrongfully" being substituted for "feloniously." Three
elements are necessary to constitute the offense of rob-
bery, as it is generally understood. 1. A taking of pro-
perty from the person or presence of its possessor.
2. A wrongful intent to appropriate it. 3. The use of
violence or fear to accomplish the purpose. The first
and second of these elements, the third being wanting,
constitute simple larceny. The first and third, without
the second, amount at most to a trespass. The second
and third, without the first, constitute an attempt to rob.
These elements are kept in view in the provisions upon
robbery; and offenses not presenting all are excluded from
this chapter, and covered by other provisions of the Code.
OF THE STATE OF NEW YORK.
99
For the distinctions between robbery, larceny, extor-
tion, embezzlement, and those cases of taking of per-
sonal property which amount only to trespass, see notes
upon the subjects of larceny and extortion.
S 281. To constitute robbery the force or fear must
be employed either to obtain or retain possession of
the property or to prevent or overcome resistance
to the taking. If employed merely as a means of
escape it does not constitute robbery.
This provision conforms to the existing law, as estab-
lished by the Revised Statutes. It has been held, indeed,
that violence employed to get possession of the property
does not constitute robbery; to have this effect the force
must be employed to prevent or overpower resistance.
State v. John., 5 Jones N. C. Law Rep., 163; Rex v.
Gnosil, 1 Carr. & P., 304; Rex v. Baker, Leach., 290; R.
v. Homer, Leach, 291, n. The Commissioners believe,
however, it will be found the safer rule to punish the
taking as robbery where it is accomplished by force,
against an actual dissent of the owner's will. This will
exclude secret stealing from the person; such as picking
the pocket, and other cases in which, though an indefi-
nitely small force is used in removing the property, it is
done without the owner's knowledge.
$282. When force is employed in either of the
ways specified in the last section, the degree of force
employed is immaterial.
In an English case, it appeared that the prisoner struck
the prosecutor's hand so as to cause money in it to fall to
the ground, and then picked up the money himself, using
threatening violence to prevent the prosecutor from doing
so. Held, robbery if the taking by the prisoner was com-
mitted while the owner of the money still remained pre-
sent. Rex v. Francis, 2 Strange, 1015.
In a case in Rhode Island it appeared that the prisoner
put one of his hands through the arm of the prosecutor,
and with the other seized the latter's watch; saying, "I
will have your watch;" and, breaking the watch guard,
fled with the watch. Held, robbery, on the ground, the
taking was by force. The expressed determination made
the case one of open violence, as distinguished from a
secret taking or mere snatching by surprise. State v.
McCune, 5 R. I., 60.
How force
be emp-
or fear must
loyed.
Degree of
terial.
force imma-
S 283. The fear which constitutes robbery may be what fear
either:
:
may be an
element in
robbery.
፧፧
∙100
THE PENAL CODE
Value of
property
taken im-
material.
Taking of
property
robbery.
1. The fear of an unlawful injury, immediate or
future, to the person or property of the person
robbed, or of any relative, of his, or member of his
family; or,
2. The fear of an immediate and unlawful injury
to the person or property of any one in the company
of the person robbed, at the time of the robbery.
Founded upon the provisions of 2 Rev. Stat., 677,
§§ 55, 56; but extended to embrace the case of a theft
accomplished by means of a threat of immediate violence
towards a companion of the person deprived of property,
who is not, however, a relative or member of his family;
and, also, the case of theft accomplished by means of a
threat of a future injury to the property of a relative of
the person robbed, or of a member of his family.
S284. When property is taken under the circum-
stances required to constitute robbery, the fact that
the property was of trifling value does not qualify the
offense.
In Rex v. Bingley, 5 Carr. & P., 602, the property
taken was a slip of paper containing a memorandum of a
debt due to the person robbed. It was held that the
offense was robbery notwithstanding the small value of
the paper. That the prosecutor showed, by carrying the
memorandum in his pocket, he considered it of some value.
S 285. The taking of property from the person of
secretly not another is not robbery, when it clearly appears that
the taking was fully completed without his know-
ledge, unless such knowledge was prevented by the
use of force or fear.
Two de-
grees of
robbery.
Punish-
$ 286. Robbery when accomplished by the use of
force or of putting the person robbed in fear of some
immediate injury to his person, is robbery in the first
degree. When accomplished in any other manner it
is robbery in the second degree.
Corresponds with the distinction established by 2 Rev.
Stat., 677 and 678, §§ 55, 56.
S287. Every person guilty of robbery in the first
ment of in degree is punishable by imprisonment in a state
first degree. prison not less than ten years.
+
2 Rev. Stat., 678, § 57.
OF THE STATE OF NEW YORK.
101
ment of
S288. Every person guilty of robbery in the second Punish-
degree is punishable by imprisonment in a state prison
not exceeding ten years.
2 Rev. Stat., 678, § 57.
robbery in
second de-
gree.
ment of
committed
by two or
robbery
more per-
S 289. Whenever two or more persons conjointly Punish-
commit a robbery, or where the whole number of
persons conjointly committing a robbery, and per-
sons present and aiding such robbery amount to two
or more, each and either of such persons is punisha-
ble by imprisonment for life.
Intended as a stringent provision against "garroting"
and other forms of robbery by gangs. The language of
the section is framed upon that of section 391 of the
Indian Penal Code.
sons.
CHAPTER VII.
ASSAULTS WITH INTENT TO COMMIT FELONY OTHER
THAN ASSAULTS WITH INTENT TO KILL.
SECTION 290. Shooting and assaults with deadly weapons.
291. Other assaults.
292. Administering stupefying drugs.
$290. Every person who shoots or attempts to
shoot at another with any kind of fire-arms, air-gun,
or other means whatever, or commits any assault and
battery upon another by means of any deadly weapon
or by such other means or force as was likely to pro-
duce death, with intent to commit any felony other
than an assault with intent to kill, or in resisting the
execution of any legal process, is punishable by im-
prisonment in a state prison not exceeding ten years.
Embraces so much of 2 Rev. Stat., 665, § 36, as is not
already covered by the provisions of sections 278, supra,
relative to attempts to kill.
Shooting
saults with
weapons.
and as-
deadly
saults.
$291. Every person who is guilty of an assault Other as
with intent to commit any felony, except an assault
with intent to kill, the punishment for which assault
is not prescribed by the preceding section, is punish-
102
THE PENAL CODE
Adminis
tering stu-
pefying
drugs.
able by imprisonment in a state prison not exceeding
five years, or in a county jail not exceeding one year,
or by a fine not exceeding five hundred dollars, or
by both such fine and imprisonment.
Embraces so much of 2 Rev. Stat., 666, § 39, as is not
embraced by the provisions of section 279, supra, relative
to attempts to kill.
S 292. Every person guilty of administering to
another any chloroform, ether, laudanum or other
intoxicating, narcotic or anesthetic agent, with intent
thereby to enable or assist himself or any other per-
son to commit any felony, is guilty of felony.
See Consol. Stat. of Canada, 955, § 13.
Duel de-
fined.
Punish-
ment for
fighting a
duel.
Incapacity
to hold
office.
CHAPTER VIII.
DUELS AND CHALLENGES.
SECTION 293. Duel defined.
294. Punishment for fighting a duel.
295. Incapacity to hold office.
296. Punishment of seconds, aids, and surgeons.
297. Punishment for challenges.
298. Challenge defined.
299. Attempts to induce a challenge.
300. Posting for not fighting.
301. Leaving the state with intent to evade laws against duel-
ing.
302. Where such person may be indicted and tried.
303. Witness's privilege.
S 293. A duel is any combat, with deadly weapons,
fought between two persons by previous agreement
or upon a previous quarrel.
S 294. Every person guilty of fighting any duel,
although no death or wound ensues, is punishable
by imprisonment in a state prison not exceeding ten
years.
Founded on 2 Rev. Stat., 686, § 1.
S 295. Every person convicted of fighting a duel
is thereafter incapable of holding or being elected or
OF THE STATE OF NEW YORK.
103
appointed to any office, place or post of trust or
emolument, civil or military, under this state.
2 Rev. Stat., 686, § 4.
ment of
aids, and
surgeons.
S 296. Every person who is present at the time Punish-
when any duel is fought, either as second, aid or seconds,
surgeon, or who advises or gives any countenance to
any duel, is punishable by imprisonment in a state
prison not exceeding seven years.
2 Rev. Stat., 686, § 2.
ment for
S 297. Every person who challenges another to Punish-
fight a duel; every person who accepts any such challenges.
challenge; and every person who knowingly for-
wards, carries or delivers any such challenge, is
punishable by imprisonment in a state prison not
exceeding seven years.
Founded on 2 Rev. Stat., 686, § 2.
defined.
S298. Any words, spoken or written, or any signs, Challenge
uttered or made to any person, expressing or imply-
ing or intended to express or imply a desire, request,
invitation or demand, to fight a duel, or to meet for
the purpose of fighting a duel, are deemed a chal-
lenge.
See State v. Perkins, 6 Blackf., 20; Commonwealth
v. Tibbs, 1 Dana, 524.
S 299. Every person guilty of sending, uttering or
making to another any words or signs whatever, with
intent to provoke or induce such person to give or
receive any challenge to fight a duel, is guilty of a
misdemeanor.
So held in King v. Philips, 6 East., 464; upon tho
ground that as sending a challenge is a misdemeanor (as
to which see Rex v. Rice, 3 East., 581,) any act done
with intent to cause one to be sent is a misdemeanor.
Attempts to
challenge.
induce a
not fighting.
$ 300. Every person who posts or publishes another Posting for
for not fighting a duel, or for not sending or accepting
a challenge to fight a duel, or who uses any reproach-
ful or contemptuous language, verbal, written or
printed, to or concerning another, for not sending or
104
THE PENAL CODE
Leaving the
state with
intent to
evade laws
against
dueling.
Where such
person may
accepting a challenge to fight a duel, or with intent
to provoke a duel, is guilty of a misdemeanor.
Founded upon
Rev. Stat., 694, § 20.
S301. Every person who leaves this state with
intent to elude any of the provisions of this chapter,
and to commit any act out of this state, such as is
prohibited by this chapter, and who does any act,
although out of this state, which would be punisha-
ble by said provisions, if committed within this state,
is punishable in the same manner as he would have
been, in case such act had been committed within
this state.
Founded upon 2 Rev. Stat., 686, § 5. Under that pro-
vision the prosecution might be required to prove the
sending a challenge in order to warrant a conviction.
The Commissioners have extended the provision so that
proof of any act, in aid of a duel, will be sufficient.
S 302. Such person may be indicted and tried in
be indicted any county within this state
and tried.
Witness's
privilege.
$303. No person shall be excused from testifying
or answering any question upon any investigation or
trial for a violation of either of the provisions of this
chapter, upon the ground that his testimony might
tend to convict him of a crime. But no evidence
given upon any examination of a person so testify-
ing shall be received against him in any criminal
prosecution or proceeding.
Intended as a substitute for 2 Rev. Stat., 686, § 3.
CHAPTER IX.
ASSAULT AND BATTERY.
SECTION 304. Assault defined.
305. Battery defined.
306. Use of force or violence declared not unlawful in certain
cases.
307. Punishment of assault or assault and battery.
308. Assaults with dangerous weapons, &c.
1
OF THE STATE OF NEW YORK.
105
defined.
S 304. An assault is any willful and unlawful at- Assault
tempt or offer, with force or violence, to do a corporal
hurt to another.
See Hays v. People, 1 Hill, 351; 2 Bish. Cr. L., § 32;
3 Blackst. Comm., 120.
Intent to strike. An assault has also been said to be an
intentional attempt, by violence, to do an injury to the
person of another. It must be intentional. If there is
no present purpose to do an injury, there is no assault.
There must also be an attempt. A purpose not accom-
panied by an effort to carry it into immediate execution
falls short of an assault. Thus no words can amount to
an assault. But rushing towards another with menacing
gestures and with a purpose to strike is an assault, though
the accused is prevented from striking before he comes
near enough to do so. State v. Davis, 1 Ired. (N. C.), 121.
But mere threatening gestures unaccompanied by such
a purpose, although sufficient to cause a man of ordinary
firmness to believe he was about to be struck, do not
constitute an assault. Thus, when the defendant shook
his whip at the prosecutor, saying, at the same time:
"if you were not an old man I would knock you down."
Held, no assault, unless the jury should be satisfied that
there was a present purpose to strike. State v. Crow,
1 Ired. (N. C.), 375. To the same effect is Common-
wealth v. Eyre, 1 Serg. & R., 347.
So where an ambassador exhibited a painting in the
window of his house which gave offense to the crowd
without, and defendant, among the crowd, fired a pistol
at the painting at the very time when the ambassador
and his servants were in the window to remove it, but
did not intend to hurt any of them, and in fact did not.
Held, that there being no intent to injure the person
there could be no conviction for an assault. U. S. v.
Hand, 2 Wash. C. C., 435.
But threatening another with a weapon, as a means of
coercing him to yield to a demand, intending to strike if
he refuses, but not to strike if he complies, is an assault,
although the other party negotiates and no blow is finally
given. It makes no difference that the purpose to com-
mit violence is not absolute but only conditional. State v.
Morgan, 3 Ired. (N. C.), 186.
And, in general, it is an assault to present a pistol
which purports to be loaded at another person, so near
as would endanger life if it were fired, although the pis-
tol is not, in fact, loaded. State v. Smith, 2 Humph., 457.
Rex v. Parfait, Lach., 23; East. P. C., 416; Rex v. Tho-
mas, Lach., 272; East. P. C., 417; also, Morgan v. State,
33 Ala., 413, where it is held that the presenting a pistol
loaded and cocked, although with the finger on the trig-
14
106
THE PENAL CODE
Battery
defined.
Use of force
or violence
declared
not unlaw-
ful in cer-
tain cases.
ger, and in an angry manner, does not of itself raise a
presumption of an intent to murder, but is a common
assault.
Consent. In general, if the party suffering the violence
has consented to it, there is no assault. Thus, although
a child of tender years cannot legally consent to a rape
upon her, yet she may consent to an attempt to commit
it; and such an attempt, if committed with her consent,
is not an assault. Rey v. Cockburn, 3 Cox Cr. Cas., 543;
Rey v. Read, 2 Carr. & K., 957; 3 Cox Cr. Cas., 266;
1 Den. C. C., 377; Rex v. Wehegan, 7 Cox Cr. Cas., 145.
But there must be actual consent. Mere omission to
resist is not enough. Reg. v. McGavaran, 6 Cox Cr. Cas.,
64.
And where a medical man to whom a girl of fourteen
years of age was sent for professional advice had crimi-
nal connection with her, she making no resistance, from
a bona fide belief that the defendant was treating her
medically, as he represented he was doing. Held, he
was properly convicted of an assault, and might have
been of rape. Reg. v. Case, 4 Cox Cr. Cas., 220; 1 Den.
C. C., 580.
S 305. A battery is any willful and unlawful use
of force or violence upon the person of another.
$306. To use or attempt or offer to use force or
violence upon or towards the person of another is
not unlawful in the following cases:
1. When necessarily committed by a public officer
in the performance of any legal duty; or by any
other person assisting him or acting by his direction
2. When necessarily committed by any person in
arresting one who has committed any felony, and
delivering him to a public officer competent to re-
ceive him in custody;
3. When committed either by the party about to
be injured or by any other person in his aid or defense,
in preventing or attempting to prevent an offense
against his person, or any trespass or other unlawful
interference with real or personal property in his law-
ful possession; provided the force or violence used is
not more than sufficient to prevent such offense;
4. When committed by a parent or the authorized
agent of any parent, or by any guardian, master, or
OF THE STATE OF NEW YORK.
107
teacher, in the exercise of a lawful authority to re-
strain or correct his child, ward, apprentice or scholar;
provided restraint or correction has been rendered
necessary by the misconduct of such child, ward,
apprentice or scholar, or by his refusal to obey the
lawful command of such parent, or authorized agent
or guardian, master or teacher, and the force or vio-
lence used is reasonable in manner and moderate in
degree;
5. When committed by a carrier of passengers, or
the authorized agents or servants of such carrier, or
by any person assisting them, at their request, in
expelling from any carriage, railroad car, vessel or
other vehicle, any passenger who refuses to obey a
lawful and reasonable regulation prescribed for the
conduct of passengers; if such vehicle has first been
stopped and the force or violence used is not more
than is sufficient to expel the offending passenger,
with a reasonable regard to his personal safety;
6. When committed by any person in preventing
an idiot, lunatic, insane person or other person of
unsound mind, including persons temporarily or par-
tially deprived of reason, from committing an act
dangerous to himself or to another, or in enforcing
such restraint as is necessary for the protection of
his person or for his restoration to health; during
such period only as shall be necessary to obtain legal
authority for the restraint or custody of his person.
Subd. 2. Supported by People v. Adler, 3 Park. Cr.,
249; People v. Wolven, 7 N. Y. Leg. Obs., 89; People v.
McArdle, 1 Wheel. Cr., 101.
Subd. 3. Corresponds with the provisions relative to
resistance to prevent offenses, reported in Rep. Code Cr.
Pro., §§ 60-62; except that the provision has been en-
larged to embrace resistance to trespasses upon real
property.
Subd. 4. It was held in Hernandez v. Carnobeli (4 Duer,
642; S. C., 10 How. Pr., 433), that the authorized agent
of a father was not liable to a civil action for assault and
battery for force necessarily used in couveying a son from
this country back to his father in Cuba. But, in People
v. Philips (1 Wheel. Cr., 155), it was held that the right
108
THE PENAL CODE
Punish-
ment of
assault or
assault and
battery.
Assaults
with dan-
gerous wea-
pons, &c.
of a master to chastise his apprentice is strictly personal,
the master cannot direct or permit another person to
chastise the apprentice for any offense whatever. In the
light of these cases the Commissioners have drafted the
section in the text in such a form as to recognize the
right of a parent, whether father or mother, to delegate
the power to restrain, and also the power to chastise, if
indeed it is considered that any distinction exists between
the two, while the similar power of a guardian or teacher
is placed upon the same ground with that of the master
of an apprentice. Upon this subject the general rule is
that when a teacher, inflicting punishment upon his
pupil, goes beyond the limit of moderate castigation,
and either in mode or degree is guilty of unreasonable or
disproportionate violence, he is liable to a prosecution for
assault and battery. And it is not necessary to show
actual passion or vindictive feeling. The criminal intent
is inferred from the nature of the act. Commonwealth v.
Randall, 4 Gray, 36.
Subd. 5. See People v. Jillson, 3 Park. Cr., 234; Hib-
bard v. New York & Erie R. R. Co., 15 N. Y., 455. In
Sanford v. Eighth Avenue R. R. Co. (23 N. Y., 243), it
was said that the right to expel a passenger from a rail-
road car cannot be exercised without first stopping the
car. Though the language used in the opinion seems
more directly applicable to cars propelled by steam, yet
as the car, in the particular case before the court, was a
city railroad car, drawn by horses, the Commissioners
have regarded the condition that the vehicle or carriage
must be stopped before the offending passenger can be
ejected as applicable in all cases.
As to whether, after the refusal of a passenger to pro-
duce his ticket or pay his fare, on alighting from a rail-
way carriage, he can be compelled to proceed by train to
the principal station on the line, to be there dealt with
by the authorities of the company, see Reg. v. Mann, 6
Cox Cr. Cas., 461; S. C., 23 L. T., 12.
$307. Assault or assault and battery is punishable
by imprisonment in a county jail not exceeding one
year, or by fine not exceeding one thousand dollars,
or both.
This is an increase in severity of punishment as com-
pared with that inflicted under the existing laws. The
frequency and aggravation of instances of violence to the
person which have been observed during the past few
years require that a more stringent punishment be affixed
to the offense.
S 308. Every person who, with intent to do bodily
harm, and without just cause or excuse commits any
OF THE STATE OF NEW YORK.
109
assault upon the person of another with any sharp
or dangerous weapon, or who without such cause
shoots or attempts to shoot at another with any kind
of fire-arms, or air-gun, or other means whatever,
with intent to injure any person, although without
intent to kill such person or to commit any felony, is
punishable by imprisonment in a state prison not
exceeding five years, or by imprisonment in a county
jail not exceeding one year.
See Laws of 1854, ch. 74, § 1.
CHAPTER X.
LIBEL.
SECTION 309. Libel defined.
310. Libel a misdemeanor.
311. Malice presumed.
312. Truth may be given in evidence.
313. Publication defined.
314. Liability of editors and others.
315. Publishing a true report of public official proceedings
privileged.
316. Extent of the privilege.
317. Other privileged communications.
318. Threatening to publish a libel.
fined.
§ 309. Any malicious publication, by writing, print- Libel de-
ing, picture, effigy, sign or otherwise, which exposes
any person, or the memory of any person deceased,
to hatred, contempt, ridicule or obloquy, or which
causes any person to be shunned or avoided, or
which has a tendency to injure any person or corpo-
ration or association of persons, in their occupation
or business, is a libel.
This definition the commissioners think is broad enough
to embrace all the particulars of a definition of libel at
common law. 4 Bl. Com., 150; 1 Fost & F., 149; 2 Id.,
524; Indian Penal Code, § 499, et seq; 2 Kent's Com., 16;
Whart Cr. L., 2d ed., 735.
demeanor.
S 310. Every person who willfully, and with a Libel a mis-
malicious intent to injure another, publishes any
libel, is guilty of a misdemeanor.
110
THE PENAL CODE
Malice pre-
sumed.
Truth may
be given in
cvidence.
Publication
defined.
Liability of
editors and
others.
Publishing
a true re-
lic official
proceed-
ings privi-
leged.
S 311. An injurious publication is presumed to
have been malicious if no justifiable motive for
making it is shown.
§ 312. In all criminal prosecutions or indictments
for libel, the truth may be given in evidence to the
jury, and if it shall appear to the jury, that the mat-
ter charged as libelous is true and was published with
good motives and for justifiable ends, the party shall
be acquitted.
Const. of 1846, art. 1, § 8.
§ 313. To sustain a charge of publishing a libel it
is not needful that the words complained of should
have been read by another. It is enough that the
accused knowingly parted with the immediate custody
of the libel under circumstances which exposed it to
be read by any other person than himself.
Giles v. The State, 6 Ga., 276.
S 314. Each author, editor and proprietor of any
book, newspaper or serial publication, and each
member of any partnership or incorporated associa-
tion, by which any book, newspaper or serial publi-
cation is issued, is chargeable with the publication
of any words contained in any part of such book, or
number of such newspaper or serial.
Compare Rex v. Gutch, 1 Moo. & M., 433; Com-
monwealth v. Kneeland, Thach. Cr. C., 846.
S 315. No reporter, editor or proprietor of any
port of pub- newspaper, is liable to any prosecution for a fair and
true report of any judicial, legislative, or other pub-
lic official proceedings, or of any statement, speech,
argument, or debate in the course of the same, except
upon proof of malice in making such report, which
shall in no case be implied from the mere fact of
publication.
Laws of 1854, ch. 130, § 1.
In Sanford v. Bennett (24 N. I, 20), the question was
whether a speech made by a convict at the place of ex-
ecution was a speech made in the course of a judicial or
OF THE STATE OF NEW YORK.
111
public official proceeding, within the meaning of the
statute, so that one publishing it was protected by the
statute from a civil action for injurious words contained
in it, concerning other persons. The court decided the
question in the negative. They held that the statute
applies only to judicial and legislative proceedings, and
to transactions resembling them, and not to an executive
act to be performed by a single person and admitting of
no deliberation; and it protects only the publication of
speeches which form properly a part of the proceeding.
The act having thus received a judicial construction, the
Commissioners have substantially followed its language.
the privi-
lege.
S 316. Libelous remarks or comments connected Extent of
with matter privileged by the last section receive no
privilege by reason of their being so connected.
See Laws of 1854, ch. 130, § 2.
S317. A communication made to a person inte-
rested in the communication by one who was also
interested or who stood in such a relation to the
former as to afford a reasonable ground for suppos-
ing his motive innocent, is not presumed to be
malicious, and is called a privileged communication.
Dr. Civ. Code, § 25; See also 15 Law. Mag. N. S.,
216, 241; 1 Cr. M. & W., 193; Eastwood v.
Holmes, 1 Fost. & F., 347; Turnbull v. Bird,
2 Id., 524; Indian Penal Code, 443.
S 318. Every person who threatens to another to
publish a libel concerning hiin or any parent, hus-
band, wife or child of such person or member of his
family, and every person who offers to prevent the
publication of any libel upon another person with
intent to extort any money or other valuable consider-
ation from any person, is guilty of a misdemeanor.
Intentionally confined to threats uttered directly to the
person about to be libeled. The ground upon which
the criminal remedy for libel is allowed, is the tendency
of a libel to provoke a breach of the peace. A threat to
publish one uttered to third persons, and only reaching
the injured party through indirect repetition, is no more
calculated to create disturbance of the peace than other
forms of slander; and should not be distinguished from
slander in the remedy allowed.
See also Stat. 6 and 7 Vict., ch. 96, § 3, as to offers to
prevent publication of libel.
Other privi-
munica-
leged com-
tions
Threaten-
lish a libel.
ing to pub-
112
THE PENAL CODE
TITLE X.
OF CRIMES AGAINST THE PERSON AND AGAINST
PUBLIC DECENCY AND GOOD MORALS.
CHAPTER
I. Rape, abduction, carnal abuse of children, and seduction.
II. Abandonment and neglect of children.
III. Abortions and concealing death of infant.
IV. Child stealing.
V. Bigamy, incest and the crime against nature.
VI. Violating sepulture and the remains of the dead.
VII. Indecent exposures, obscene exhibitions, books and
prints, and disorderly houses.
VIII. Lotteries.
IX. Gaming.
X. Pawnbrokers.
Rape de-
fined.
CHAPTER I.
RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN,
AND SEDUCTION.
SECTION 319. Rape defined.
320. When physical ability must be proved.
321. Penetration sufficient.
322. Rape in the first degree defined.
323. Rape in the second degree defined.
324. Punishment of rape in the first degree.
325. Punishment of rape in the second degree.
326. Compelling woman to marry.
327. Taking a woman with intent to compel her to marry or to
be defiled.
328. Seduction for purposes of prostitution.
329. Abduction.
330. Seduction under promise of marriage.
331. Subsequent marriage a defense.
S319. Rape is an act of sexual intercourse accom-
plished with a female not the wife of the perpetrator,
under either of the following circumstances:
1. Where the female is under the age of ten years;
2. Where she is incapable, through lunacy or any
OF THE STATE OF NEW YORK,
113
other unsoundness of mind, whether temporary or
permanent, of giving legal consent;
3. Where she resists, but her resistance is overcome
by force or violence;
4. Where she is prevented from resisting by threats
of immediate and great bodily harm, accompanied by
apparent power of execution;
5. Where she is prevented from resisting by any
intoxicating, narcotic or anesthetic agent adminis-
tered by or with the privity of the accused;
6. Where she is at the time unconscious of the
nature of the act, and this is known to the accused;
7. Where she submits under a belief that the per-
son committing the act is her husband; and this
belief is induced by any artifice, pretense or conceal-
ment, practised by the accused, with intent to induce
such belief.
This section is an extension of the generally received
definition of rape. East defines this offense to be "the
unlawful carnal knowledge of a woman by force and
against her will." (1 East. P. C., 434.) Blackstone de-
fines it in the same language, omitting the word "unlaw-
ful." (4 Blackst. Comm., 210.) And this is believed to
be substantially the definition given by the leading
writers on criminal law, except that some of the later
decisions indicate a disposition to substitute the idea
without her consent" for "against her will." (See Reg.
v. Camplin, 1 Cox Cr. Cas., 220; 1 Den. C. C., 89; 1
Carr. & K., 746; Reg. v. Sweenie, 8 Cox Cr. Cas., 223;
3 Irvine, 159.)
แ
Our own Revised Statutes, in lieu of any formal defi-
nition of the crime, provide that: "Every person who
shall be convicted of rape, either: 1. By carnally and
unlawfully knowing any female child under the age of
ten years; or, 2. By forcibly ravishing any woman of
the age of ten years or upwards; shall be punished," &c.
(2 Rev. Stat., 663, § 22.)
The Commissioners have designed to present a defini-
tion which should expressly include the various instances
which have been adjudged to constitute the offense, with
some others which have been held not to fall within the
limited definition of the common law authorities, but to
which the same penalties ought to be extended.
Subd. 1. This provision embodies the well settled
rule of the existing law; that a girl under ten years of
15
114
THE PENAL CODE
1
1
!
age is incapable of giving any consent to an act of inter-
course which can reduce it below the grade of rape.
Consult 2 Rev. Stat., 663, § 22, subd. 1; quoted, supra,
Stephen v. State, 11 Ga., 225; State v. Farmer, 4 Ired.,
224; 4 Blackst. Comm., 212.
Subd. 2. It is probable that an act of intercourse with
a woman above the age of ten years, but mentally inca-
pable of giving legal consent, would be held to be "forci-
bly ravishing," within the meaning of subdivision 2 of 2
Rev. Stat., 663, § 22, quoted supra. The question is not
known to have arisen in the courts of our state. In Eng-
land it has been held that under the statute, 13 Edw. I, c.
34,-which provides that if a man
*
* do ravish a
woman * * when she did not consent, neither before
nor after, he shall, &c.,-forcible intercourse with a female
incapable, through imbecility of mind, of giving legal
consent, is rape; although she was above ten years of
age, and offered no resistance. (Reg. v. Fletcher, 8 Cox
Cr. Cas., 131; 5 Jur., N. S., 179.) See, also, in support
of the same principle, Rex v. Ryan, 2 Cox Cr. Cas., 115;
State v. Cron, 10 West. L. J., 501; McNamara's case,
Oakley, 521. Believing that, under the existing law, an
insane female stands in the same position, in respect to
this offense, with a child under ten, the Commissioners
have embodied a statement of that rule in the section.
Subd. 3 and 4. These embrace the ordinary cases of
the offense, and require no special remark. As to rosist
ance overcome by force, see Charles v. State, 6 Engl.,
389; State v. Jim, 1 Den., 142; Pollard v. State, 2 Clarke,
567; Myatt v. State, 2 Swan., 394; Lewis v. State, 30
Ala., 54; State v. Blake, 39 Me., 322; Barney v. People,
22 Ill., 160. As to resistance overcome by fear, see
Pleasant v. State, 8 Engl., 360; Reg. v. Hallett, 9 Carr.
& P., 748; Reg. v. Day, Id., 722; Wright v. State, 4
Humph., 194.
Subd. 5. This provision is intended to cover cases
where the female is rendered temporarily incapable of
giving consent by means of liquors or drugs; and em-
braces the cases now covered, though not under the
name of rape, by the provisions of 2 Rev. Stat., 663, § 23.
In Reg. v. Camplin, 1 Cox Cr. Cas., 220; 1 Den. C. C., 89;
1 Carr. & K., 746; the jury found that the prisoner gave
liquor to the female for the purpose of exciting her passions
and inducing her consent; it had, however, the effect of ren-
dering her drunk and insensible; in which condition he
violated her. This was held to be rape; on the ground
that the connection was accomplished without the consent
and against the will of the female, which was all that
was necessary to constitute the offense. Actual resist-
ance on her part was not necessary to be shown.
A number of similar instances of the commission of
OF THE STATE OF NEW YORK.
115
į
1
the offense are referred to in Wharton & St. Med. Jur.,
§§ 441-443.
The Commissioners do not limit this provision to cases
in which the stupefying drug is administered with intent
to facilitate a rape. Cases in which the drug is adminis-
tered from proper motives, but the accused afterwards.
avails himself of the helplessness of the subject to com-
mit the offense are designed to be included. It is indeed
doubtful whether, in the case of Reg. v. Campliù, above
cited, a conviction would have been sustained indepen-
dent of the circumstances, upon which some stress is
laid by members of the court, that the liquor was given
with an unlawful intent, and that the prosecutrix indica-
ted dissent by refusing the prisoner's solicitations as long
as she had the power. But a comparatively recent and
familiar trial in which it was charged that advantage was
taken of helplessness induced by the administration of
chloroform, shows the possibility of a case arising in
which the stupefying drug may have been originally
given for a lawful purpose, and no indication of dissent
given by the female for the reason that there was no
previous solicitation, nor was any violence apprehended
by her; and the offense may be an afterthought, sug-
gested by the opportunity. Such a case ought to be
embraced within the law.
Subd. 6. It can but rarely happen that the subject of
the offense consciously submits to the act uncompelled,
without being aware of its nature; yet some cases of
this sort are reported.
In Reg. v. Case (4 Cox Cr. Cas., 220), the defendant
was a medical practitioner, and the prosecutrix was a
young girl placed under his care for medical treatment.
She made no resistance to the connection owing to a
belief, from representations of defendant, that she was
submitting to medical treatment for the ailment under
which she labored. Held, upon an indictment for assault,
that the accused was rightly convicted. Her submission
to the act under an impression that it was something
necessary to her case was not such a consent as relieved
the defendant from criminal responsibilty.
Whether it is to be regarded as possible that a connec-
tion should be accomplished during the unconsciousness
of natural sleep, without arousing the female, is said to
be an open question in medical jurisprudence. (See Beck's
Med. Jur., 7th ed., 117; Tayl. Med. Jur., 5th ed., 654; Whart.
& St. Med. Jur., 336, §§ 440, 441; Montgomery on Pregnancy,
2d ed., p. 361; Bundelius, 96, 99.) Whether an unlawful
counection so accomplished should be deemed, if proved, to
amount to rape has been differently decided by the courts.
(See Reg. v. Sweenie, 8 Cox Cr. Cas, 223; 3 Irvine, 159,
in the affirmative, and Fields case, 4 Leigh, 648; Charles
v. State, 6 Engl., 389, in the negative. It has not been
116
THE PENAL CODE
*
When
physical
ability
must be
proved.
Penetration
sufficient.
thought best on a review of the authorities to specify this
as one of the cases embraced. The danger of giving rise
to unjust prosecutions in cases where the sleep was merely
simulated, is to be weighed against that of the commis-
sion of the offense where the sleep is genuine.
Subd. 7. Several cases are to be found in the reports,
in which a criminal connection has been accomplished by
means of personating the husband of the female. In
England this is held not to be rape. (Reg. v. Clarke,
Dearsly, 397; 6 Cox. Cr. Cas., 412; 18 Jur., 1059; 29
Eng. L. & Eq., 542; Rex v. Jackson, Russ & Ry., 437;.
Reg. v. Williams, 8 Carr & P., 286; Reg. v. Saunders, id.,
265. In Scotland it has been held to be rape. Fraser's
case, Arkley, 329; Reg. v. Sweenie, 8 Cox Cr. Cas., 223.
In this country the question has been differently decided
in the different states. See Wyatt v. State, 2 Swan, 394;
Lewis v. State, 30 Ala., 54; People v. Bartow, 1 Wheel. Cr.
Cas., 378; following the English view; and State v. Shep-
ard, 7 Conn., 54; Anon., 1 Wheel. Cr. Cas., 381, note
adopting the contrary.
Without reviewing the reasoning of these cases, or
questioning the soundness of the English decisions con-
sidered as exposition of the existing law, the commis-
sioners think that this offense fully partakes of the guilt
of rape, and should share its punishment in all instances
in which any means are used by the accused to create a
belief that he is the husbaud.
$320. No conviction for rape can be had against
one who was under the age of fourteen years at the
time of the act alleged; unless his physical ability to
accomplish penetration is proved as an independent
fact, and beyond a reasonable doubt.
Many of the authorities lay down the rule as conclusive
that incapacity is to be presumed when the accused is
under 14 years of age (See 2 Bish. Cr. L., § 936). In
People v. Randolph, 2 Park. Cr., 174; and Williams v.
State, 14 Ohio, 222, the presumption has been held capable
of being rebutted by proof of actual capacity in the indi
vidual.
As by our existing law, penetration is declared suffi
cient to constitute the offense (2 Rev. Stat., 735, § 18), it
seems consistent that the special proof of power to com-
mit the crime, required in the case of a boy under 14,
should be adduced to that point though this is probably
a severer rule than is contemplated by the decisions above
cited.
S 321. The essential guilt of rape consists in the
outrage to the person and feelings of the female
1
OF THE STATE OF NEW YORK.
117
Any sexual penetration, however slight, is sufficient
to complete the crime.
See 2 Rev. Stat., 735, § 18; Robertson's Case, 1
Swint, 98.
first degree
defined.
S322. Rape committed upon a female under the Rape in the
age of ten years, or incapable through lunacy or any
other unsoundness of mind of giving legal consent,
or accomplished by means of force overcoming her
resistance, is rape in the first degree.
S 323. In all other cases rape is of the second Rape in the
degree.
S 324. Rape in the first degree is punishable by
imprisonment in a state prison not less than ten
years.
See 2 Rev. Stat., 663, §§ 22, 23.
S 325. Rape in the second degree is punishable
by imprisonment in a state prison not less than five
years.
Ibid.
second de-
gree definod
Punish-
rape in the
ment of
first degree
Punish-
rape in the
ment of
second de-
gree.
or Compel-
ling woman
to
S326. Every person who, by force, menace
duress, compels any woman, against her will,
marry him or to marry any other person, is pun-
ishable by imprisonment in a state prison not less
than ten years.
See 2 Rev. Stat., 663, § 24. The language of the
Revised Statutes is, "Every person who shall take any
woman unlawfully, against her will, and by force menace
or duress compel her to marry him or to marry any other
person, or to be defiled," &c. The commissioners have
omitted the words "or to be defiled," because the offense
of taking a woman and by force compelling her to be
defiled is covered by the provisions of section 319, defin-
ing rape, taken in connection with section 27, which
abrogates the distinction between principals and acces-
sories before the fact, and declares persons who aid and
abet in the commission of a crime, principals. And they
have omitted the word "unlawfully," because there is no
case in which a woman can be lawfully taken and com-
pelled to marry. But in the next section the language of
the Revised Statutes is retained because the taking of a
woman with intent to cause her to be defiled, is not em-
to marry.
118
THE PENAL CODE
Taking a
woman
to compel
braced in the crime of rape; which requires an act of
penetration.
S 327. Every person who takes any woman unlaw-
with intent fully against her will, with the intent to compel her
by force, menace or duress to marry him, or to marry
any other person, or to be defiled, is punishable by
imprisonment in a state prison not exceeding ten
her to mar-
ry or to be
defiled.
Seduction
years.
"Not exceeding ten years" is substituted for "not less
than ten years."
S 328. Every person who inveigles or entices any
ses of pros- unmarried female of previous chaste character under
for purpo-
titution.
Abduction.
the age of twenty-five years, into any house of ill-
fame or of assignation, or elsewhere, for the purpose
of prostitution; and every person who aids or assists
in such abduction for such purpose; and every per-
son who, by any false pretenses, false representations
or other fraudulent means, procures any female to
have illicit carnal connection with any man; is pun-
ishable by imprisonment in a state prison not exceed-
ing five years, or by imprisonment in a county jail
not exceeding one year, or by a fine not exceeding
one thousand dollars, or by both such fine and im-
prisonment.
Founded upon Laws of 1848, ch. 105; and Stat. 24 and
25 Vict., ch. 100, § 49.
Omitted provisions. The further provision of the act of
1848, that no conviction shall be had upon the unsup-
ported testimony of the female enticed away, is here
omitted for the reason that it belongs to the subject of
evidence. See the provisions already reported upon that
subject. Rep. Code Civ. Pro., Part IV.
So much of the act of 1848, above cited, as provides
that indictments for the offense of enticing away females.
for the purpose of prostitution, must be found within two
years after the commission of the offense, is already em-
bodied in Rep. Code Cr. Pro., § 141.
S 329. Every person who takes away any female
under the age of sixteen years, from her father,
mother, guardian or other person having the legal
charge of her person, without their consent, either for
the purpose of marriage, concubinage or prostitution
OF THE STATE OF NEW YORK.
119
is punishable by imprisonment in a state prison not
exceeding five years, or by imprisonment in a county
jail not exceeding one year, or by a fine not exceed-
ing one thousand dollars, or by both such fine and
imprisonment.
Founded upon 2 Rev. Stat., 664, § 26. The limit of
age being varied from 14 years to 16.
Under the analogous English statute, 9 Geo. IV, ch. 31,
§ 20, it has been held not to be necessary that the girl
should be taken by force, either actual or constructive, or
be taken out of the actual possession of the parent or
guardian. It is enough if she be persuaded by the priso-
ner to leave her home, and the control of the parent con-
tinues down to the time of the taking. Where, therefore,
the prisoner persuaded a girl under sixteen to meet him at
a place two miles from her father's house, where she
lived, for the purpose of going with him to America, and
did so voluntarily, leaving her home alone, then meeting
the prisoner at the place appointed, and afterwards travel-
ing with him to London: Held, that he was guilty of
abduction. Reg. v. Monktelow, 6 Cox Crim. Cas., 143;
22 L. J. M. C., 115, S. P., Reg. v. Kipps, 4 Cox Cr. Cas.,
167; Reg. v. Frazer, 8 id., 446.
So it has been held that the statute was satisfied, though
the prisoner and the female quitted the house together in
consequence of a proposition which emanated from the
girl herself to that effect, and a statement by her to the
prisoner that she intended to leave her father's house.
Reg. v. Biswell, 2 Cox Cr. Cas., 279.
So where it was proved that the prisoner (with whom
the girl had previously stayed out for a night), met her
by arrangement, and stayed with her away from her
father's house for three days, sleeping with her at night,
that he took her away without the father's consent in
order to gratify his passions, and then allow her to return.
home, but not with a view of keeping her away from her
home permanently, it was held that the evidence justified
a conviction under the above enactment. Reg. v. Timmons,
8 Cox Cr. Cas., 401.
But where it did not appear that the prisoner had
any
improper motive, the jury were directed that if they
thought the prisoner merely wished to have the child to
live with him, and honestly believed that he had a right
to the custody of the child although he had no such right,
they ought to acquit him. Reg. v. Tinkler, 1 Fost. & F.,
513.
As to what is to be deemed a person "having the legal
charge of her person," in the case of an orphan child,
over whom no guardian has been appointed, see State v.
Ruhl, 8 Clarke, 447.
120
THE PENAL CODE
Seduction
under pro-
mise of
marriage.
$ 330. Every person who, under promise of mar-
riage, seduces and has illicit connection with any
unmarried female of previous chaste character, is
punishable by imprisonment in a state prison not
exceeding five years, or by imprisonment in a county
jail not exceeding one year, or by a fine not exceeding
one thousand dollars, or by both such fine and impri-
sonment.
}
Founded upon Laws of 1848, ch. 111, § 1; the punish-
ment being modified to correspond with that prescribed
for the analogous offenses specified in the two sections
preceding.
Omitted provisions. The further provision of the statute
cited that uo conviction shall be had upon the unsup-
ported testimony of the female seduced is here omitted.
for reason that it belongs to the subject of evidence. See
the provisions already reported upon that subject. Rep.
Code Civ. Pro., Part IV.
So much of the act of 1848, above cited as provides
that indictments for seduction must be found within two
years after the commission of the offense, is already em-
bodied in Rep. Code Cr. Pro., § 141.
"Promise of Marriage." As to what promise is suffi-
cient. See People v. Alger, 1 Park. Cr., 333; Crozier v.
People, Id.. 453; State v. Bierce, 27 Conn., 319.
'Seduced," &c. The words "and has illicit connection
with," are retained for the reason they are found in the ex-
isting statute; and it is desired to avoid implying auy
change in the law in this respect. But the words quoted
are probably unnecessary. The word "seduce," when
used in such a statute and with reference to conduct of
a man towards a woman, has been held to describe the
offense sufficiently. State v. Bierce, 27 Conn., 319.
"Unmarried Female." That the condition of the female
as unmarried, is an element of the offense, under statutes
of this description, and must be proved by the govern-
ment. See West v. State, 1 Wisc., 209.
"Previous Chaste Character." Character here is to bo
distinguished from reputation; in which sense the word
is often used, even in our statutes (e. g., Code of Pro., §
179, subd. 1 and 5). Character consists of the quali-
ties which constitute the individual; reputation the sum
of opinions entertained concerning him. Character is
interior; reputation external. Character is the sub-
stance of the individual; reputation is the shadow. The
word is used in this statute, and in the similar provisions
embodied in section 328, in its strict and proper sense;
and requires that the female should actually be, not merely
that she should have been reputed to be of personal virtue
1
OF THE STATE OF NEW YORK.
121
up to the time of the seduction by defendant. Carpenter
1. People, 8 Barb., 603; Safford v. People, 1 Park. Cr.,
474; See also Andre v. State, 5 Clarke, 389; Boak v.
State, Id., 430.
marriage a
S331. The subsequent marriage of the parties is a Subsequent
defense to a prosecution for a violation of the last defense.
section.
See Laws of 1848, ch. 111.
CHAPTER II.
ABANDONMENT AND NEGLECT OF CHILDREN.
SECTION 332. Deserting child.
333. Omitting to provide child with necessaries.
child.
S 332. Every parent of any child under the age of Deserting
six years, and every person to whom any such child
has been confided for nurture or education, who
deserts such child in any place whatever, with intent
wholly to abandon it, is punishable by imprisonment
in a state prison not exceeding seven years, or in a
county jail not exceeding one year.
Sce 2 Rev. Stat., 665, § 35.
S333. Every parent of any child who willfully
omits, without lawful excuse, to perform any duty
imposed upon him by law to furnish necessary food,
clothing, shelter, or medical attendance for such child,
is guilty of misdemeanor.
Consult the Civil Code for the provisions reported
defining the duty of parental support. As to the crimi-
nality of a willful omission to perform this duty. See
Reg. v. Chandler, 1 Jur. N. S., 429; 25 Law T., 133; Reg.
v. Gray, 7 Cox Cr. Cus., 326; 3 Jur. N. S., 988; Reg. v.
S 5 Cox Cr. Cas., 279; Reg. v Philpot, 6 Id., 140.
}
omitting to
child with
provide
necessaries.
122
THE PENAL CODE
Adminis-
tering
intent to
procure
miscar-
riage.
CHAPTER III
ABORTIONS AND CONCEALING DEATH OF INFANT.
SECTION 334. Administering drugs with intent to procure miscarriage.
335. Submitting to attempt to procure miscarriage.
336. Concealing still birth or death of infaut.
S 334. Every person who provides. supplies or ad-
drugs with ministers to any woman, whether pregnant or not,
or prescribes for any such woman, or advises or pro-
cures any such woman to take any medicine, drug
or substance, or uses or employs any instrument, or
other means whatever, with intent thereby to procure
the miscarriage of such woman, unless the same is
necessary to preserve her life, is punishable by im-
prisonment in a state prison not exceeding three
years or in a county jail not exceeding one year.
Submitting
to attempt
miscarriage
See Laws of 1845, ch. 260, § 2.
That it is not necessary to prove that the medicine was
actually taken, see State v. Murphy, 3 Dutch., 112. Nor
that the prisoner was present when it was taken. Reg v.
Wilson, 1 Dears. & B. 127; 37 Eng. L. & Eq., 605; Reg
v. Farrow, 40 Eng. L. & Eq., 550. Compare also Reg v.
Fretweli, 9 Cox Cr. Cas., 152.
S 335. Every woman who solicits of any person
to procure any medicine, drug or substance whatever, and takes
the same, or who submits to any operation or to the
use of any means whatever, with intent thereby to
procure a miscarriage, unless the same is necessary
to preserve her life, is punishable by imprisonment in
a county jail not exceeding one year, or by a fine
not exceeding one thousand dollars, or by both.
See Laws of 1845, ch. 260, § 3. The offense of wil-
fully killing an unborn quick child is covered by provi-
sions in the chapter upon HOMICIDE.
The exception "unless the same is necessary to pre-
serve her life," is found in Laws of 1846, ch. 22, § 1. See
section 250, supra. And is introduced in this and the
preceding section in order that the analogous provisions
may correspond.
OF THE STATE OF NEW YORK.
123
S 336. Every person who endeavors either alone or
Concealing
still birth
or death of
infant.
by the aid of others to conceal the still birth of any fant
child, which if born alive would be a bastard, or the
death of any such child under the age of two years,
whether such person be the mother of such child or
not, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not exceeding
one thousand dollars, or by both.
See Laws of 1845, ch. 260, § 4; Stat. 24 and 25 Vict.,
cl. 100, § 60.
As to the evidence requisite to support an indictment
for concealing the birth of a child, see Reg. v. Bird, 2
Carr. & K., 817; Reg. v. Goode, 6 Id., 318; Reg. v
Berriman, Id., 388; Reg. v.
Id., 391; Reg. v.
Perry, Id., 531; 24 L. J. (2. B.), 137; Reg. v. Opie,
8 Cox Cr. Cas., 332.
CHAPTER IV.
CHILD STEALING.
SECTION 337. Definition and punishment of child stealing.
Definition
and punish-
ment of
child steal-
ing.
S 337. Every person who maliciously, forcibly or
fraudulently takes or entices away any child under nor
the age of twelve years, with intent to detain and
conceal such child from its parent, guardian or other
person having the lawful charge of such child, is pun-
ishable by imprisonment in a state prison not exceed-
ing ten years or by imprisonment in a county jail not
exceeding one year, or by fine not exceeding five
hundred dollars, or by both such fine and imprison-
ment.
2 Rev. Stat., 665, § 34. The words "takes or entices,"
away are substituted for "leads, takes or carries away, or
decoys or entices away," merely for greater conciseness,
and not to introduce any change in the law.
124
THE PENAL CODE
?
Bigamy
defined.
CHAPTER V.
BIGAMY, INCEST AND THE CRIME AGAINST NATURE
SECTION 338. Bigamy defined.
339. Exceptions.
་
340. Punishment of bigamy.
341. Other unlawful marriages.
342. Incest.
343. Crime against nature.
344. Penetration sufficient.
S 338. Every person who, having been married to
another who remains living, marries any other per-
son, except in the cases specified in the next section,
is guilty of bigamy.
See 2 Rev. Stat., 687, § 8. Modification of the law. The
language of the Revised Statutes is: 'Every person
having a husband or wife living, who shall marry any
other person," &c. Under this phraseology it was held
that notwithstanding the exception in next section,
which provided that the previous section should not ex-
tend to any person by reason of any former marriage
which had been dissolved for some cause other than the
adultery of such person, a person who married again
after a divorce pronounced for his or her own adultery,
was not guilty of bigamy. A divorced person, it was
held could not be said to have a "husband or wife liv-
ing" within the meaning of section 8, of 2 Rev. Stat., 687;
People v. Hovey, 5 Burb., 117.
On viewing together all the provisions of the existing
law of marriage, divorce and bigamy the Commissioners
believe it to be the clear intention of the legislature that
where a divorce is granted for adultery, the innocent
party only should be set free to marry again, and that the
guilty one should remain incapable of marrying and liable
to punishment for bigamy if he assumes so to do. They
have, therefore modified the language of the provision so
as to avoid the possibility of the rule laid down in Peo-
ple v. Hovey, being applied.
It may be added that the reasoning in People v. Hovey
which was decided in the supreme court in 1849, is shaken
by the decision of the court of appeals in 1850, in Wait
v. Wait, 4 Comst., 95. In that case it was held that
a woman who had been granted a divorce from her
husband for his adultery is entitled, notwithstanding, to
dower on his estate, after his death; under the language
OF THE STATE OF NEW YORK.
125
of 1 Rev. Stat., 740, § 1, viz.: "A widow shall be en-
dowed," &c.
Except perhaps for the rule that penal statutes are to
be strictly construed it would seem indisputable that if a
woman so divorced were to be deemed to become the
widow of her former husband at his death so as to en-
title her to dower, she must be held to have remained his
wife, notwithstanding the divorce, during his lifetime, so
as to render his subsequent marriage bigamy. But the
language employed in the text, will, it is believed, avoid
all question upon the subject.
He
What is proof of marriage. What is to be deemed a
marriage is left to the operation of the rules of law gov-
erning that relation. It is generally understood that a
marriage in fact must be proved, and that mere proof of
reputation is not enough. In a recent case in the court
of Appeals this rule and its limit, were carefully consid-
ered. In that case the prosecution to establish the fact
of a recent marriage, called a witness who testified in
substance that the prisoner conducted her to a house
where he had taken rooms. The prisoner went out and
returned with a person represented to be a minister.
was dressed like one, and had on a white neck-tie. She
did not ask his name. The marriage ceremony was then
performed by this person. He used the form of marriage
of the Protestant Episcopal Church. He inquired of the
witness if she would take the prisoner for her husband,
and she replied in the affirmative; and the prisoner was
asked if he would have her for his wife, and upon his
replying affirmatively, the minister declared them man
and wife. The person officiating gave her a certificate,
using a partly printed form, and filling in the blanks by
writing. The certificate was taken by the prisoner, and
put in his trunk, and was afterwards seen by a sister of
the witness, when the parties were living together as mau
and wife. This marriage ceremony was followed by co-
habitation, which continued for about a year. Held, that
even if to constitute a valid marriage, it must be solem-
nized by a minister or magistrate, the evidence was suffi-
cient prima facie, to prove a marriage in fact. A person
appeared in the character of a clergyman, performed the
ceremony, and it was followed by cohabitation. If the
person officiating was not a clergyman, it was for the
prisoner to show that fact. 12 Vt., 396; 10 East, 282.
But in this state there may be a valid marriage, though
not formally solemnized by a clergyman or consent de-
clared before a magistrate. If parties competent to con-
tract, in the presence of witnesses, agree together to be
husband and wife, and afterwards cohabit and recognize
each other as such, it is a sufficient marriage to sustain
an indictinent for bigamy in the event of one of the
parties having before that time married another, who is
126
THE PENAL CODE
Exceptions.
still living. It was not an error therefore for the judge
to instruct the jury, that if the prisoner and the witness.
agreed, in the presence of the man represented to be a
minister, to be man and wife, and afterwards lived
together as such, that was, in the eye of the law, a suffi-
cient marriage to sustain an indictment for bigamy; the
fact that the prisoner had, before that time, married Sarah
E. Blair, and she was then living, being admitted; and
that it was of no consequence whether the man repre-
sented to be a minister was such or not. Marriage in
this state is a civil contract, and does not require the in-
tervention of a minister or magistrate to make it legal.
Hayes v. People, 25 N. I., 390.
Whether the prisoner's confession that his first wife
was living when he contracted the second marriage is
sufficient evidence, see Reg. v. Flaherty, 2 Carr. & K.,
782; Laugtry v. State, 30 Ala., 536; Gorman v. State,
23 Tex., 646.
$339. The last section does not extend:
1. To any person by reason of any former marriage,
whose husband or wife by such marriage has been
absent for five successive years without being known
to such person within that time to be living; nor,
2. To any person by reason of any former marriage
whose husband or wife by such marriage has absented
himself or herself from his wife or her husband and
has been continually remaining without the United
States for the space of five years together; nor,
3. To any person by reason of any former marriage
which has been pronounced void, annulled or dis-
solved by the judgment of a competent court, unless
such marriage was dissolved upon the ground of
adultery committed by such person; nor,
4. To any person by reason of any former marriage
with a husband or wife who has been sentenced to
imprisonment for life.
Founded upon 2 Rev. Stat., 687, § 9.
Subd. 1. What proof of the defendant's knowledge that
the former husband or wife was living when the second
marriage was contracted, is proper, depends upon the facts
of each case. Reg. v. Ellis, 1 Fost. & F., 309.
Where the prisoner was indicted for bigamy, and no
evidence was given on either side as to the prisoner's
knowledge that his wife was alive, but it was proved that
OF THE STATE OF NEW YORK.
127
they had separated by agreement in 1843, and that in
1857 the prisoner produced her at a trial in which he
was interested; Held, that it was for the jury to say
whether there was an absence of knowledge on the part
of the prisoner that his wife was alive in 1855, the date
of the second marriage. Reg. v. Cross, 1 Fost. & F., 510.
Upon a trial for bigamy, where it appeared that the
first husband had been continually absent from the priso-
ner for the space of seven years next preceding the sec-
ond marriage, the jury being asked to consider whether
she knew her husband to be alive at the time of the
second marriage; and, if not, whether she had had the
means of acquiring the knowledge: found that they had
no evidence of her knowledge, but were of opinion that
she had the means of acquiring knowledge, if she had
chosen to make use of them: Held, that upon that find-
ing the conviction could not be sustained, inasmuch as it
left it uncertain whether, in fact, she had or had not the
knowledge. Reg. v. Briggs, 7 Cox Crim. Cas., 175.
That express proof that the former husband or wife
was living is not always required, but strong presumption
of continued life may suffice. See Gorman v. State, 23
Tex., 646.
Subd. 3 In order to attain greater conciseness, and to
render the provisions of the text conformable to the
nomenclature respecting proceedings in courts of justice
introduced by the Code of Procedure, subdivision 3 in
the text is substituted for the following subdivisions of
the section as it stands in the Revised Statutes:
"3. To any person by reason of any former marriage
which shall have been dissolved by the decree of a com-
petent court for some cause other than the adultery of
such person; nor,
"4. To any person by reason of any former marriage
which shall have been pronounced void by the sentence
or decree of any competent court on the ground of nullity
of the marriage contract; nor,
"5. To any person by reason of any former marriage
contracted by such person, within the age of legal con-
sents, and which shall have been annulled by the decree
of a competent court."
Place of trial. The substance of the provisions of 2
Rev. Stat., 688, § 10, declaring bigamists triable in the
county where apprehended as well as in the county
where the offense was committed has been embodied in
Rep. Code Cr. Pro., § 135.
ment of
S 340. Every person guilty of bigamy is punishable Punish-
by imprisonment in a state prison not exceeding five
years.
See 2 Rev. Stat., 687, § S.
bigamy.
128
THE PENAL CODE
Other
unlawful
S 341. Every person who knowingly marries the
marriages. husband or wife of another, in any case in which
such husband or wife would be punishable according
to the foregoing provisions, is punishable by impri-
sonment in a state prison not exceeding five years.
or in a county jail not exceeding one year, or by a
fine not exceeding five hundred dollars, or by both
such fine and imprisonment.
Incest.
Crime
against
nature.
See 2 Rev. Stat., 688, § 11. That provision, as now in
force, applies only to unmarried persons; the idea being,
doubtless, that a married person who knowingly marries
the husband or wife of another, is punishable for the
higher offense of bigamy, by reason of his or her own.
previous marriage. But to sustain a prosecution for
bigamy the people must be prepared to prove the first
marriage of the accused. A case might arise in which a
married person contracting a marriage with a husband or
wife of another might escape an indictment for bigamy
for want of evidence of an earlier marriage, and yet, if
indicted under section 11 of 2 Rev. Stat., 688, defeat the
prosecution by proof of such earlier marriage. The Com-
missioners have, therefore, omitted the word "unmar-
ried." It may be remarked that by a subsequent section
it is provided that where an act or omission is made
punishable in different ways by different provisions of
this Code, it may be punished under either of said provi-
sions, but not under more than one. Therefore, under the
above sections, as reported by the Commissioners, a per-
son supposed to be married, and charged with marrying
the husband or wife of another may be indicted either
for bigamy under section 338, or for the felony prohibited
by section 341, according as it may be easiest to prove
the former marriage of the accused or that of the per-
son with whom the accused has now intermarried.
S 342. Persons who, being within the degrees of
consanguinity within which marriages are, by section
30 of the Civil Code, declared incestuous and void,
intermarry with each other, or commit adultery or
fornication with each other, are punishable by im-
prisonment in a state prison not exceeding ten
years.
2 Rev. Stat., 688, § 12.
S 343. Every person who is guilty of the detestable
and abominable crime against nature, committed with
OF THE STATE OF NEW YORK.
129
mankind or with any animal, is punishable by impri-
sonment in a state prison not exceeding ten years.
Ibid, § 20; 24 and 25 Vict., ch. 100, § 61.
against
nature.
S 344. Any sexual penetration, however slight, is Crime
sufficient to complete the crime against nature.
See 2 Rev. Stat., 735, § 18.
CHAPTER VI.
VIOLATING SEPULTURE AND THE REMAINS OF THE
DEAD.
SECTION 345. Right to direct disposal of one's own body after death.
346. Duty of burial.
347. Burial in other states.
348. Dissection when allowed.
349. Unlawful dissection a misdemeanor.
350. Remains after dissection must be buried.
351. Dead limb or member of a human body.
352. Who are charged with duty of burial.
353. Punishment for omitting to bury.
354. Who entitled to custody of a body.
355. Unlawful removal of or interference with the bodies of the
dead.
356. Purchasing corpses forbidden.
357. Unlawful interference with places of burial.
358. Removal from one burial place to another.
359. Arresting or attaching a dead body.
360. Disturbing funerals.
361. Defacing tombs, monuments, &c.
362. Unlawful dissection.
S 345. Every person has the right to direct the
manner in which his body shall be disposed of
after his death; and to direct the manner in which
any part of his body which becomes separated
therefrom during his lifetime shall be disposed of.
The provisions of this chapter do not apply where
such person has given directions for the disposal of
his body or any part thereof inconsistent with those
provisions.
direct dis-
Right to
posal of
one's own
body after
death.
burial.
S 346. Except in the cases in which a right to dis- Duty of
sect a dead body is expressly conferred by law, every
17
130
THE PENAL CODE
Burial in
other states
Dissection,
when al-
lowed.
Unlawful
dissection
a misde-
meanor.
Remains
after dis-
section
must be
buried.
Dead limb
or member
body.
dead body of a human being lying within this state
must be decently buried within a reasonable time
after the death.
S 347. The last section does not affect the right to
carry the dead body of a human being through this
state, or to remove from this state the body of a per-
son dying within it, for the purpose of burying the
same in another state.
S 348. The right to dissect the dead body of a
human being exists in the following cases:
1. In the cases defined in section 845 of the Politi-
cal Code;
2. Whenever a coroner is authorized by law to hold
an inquest upon the body, so far as such coroner
authorizes dissection for the purposes of the inquest
and no further;
3. Whenever and so far as the husband or next of
kin of the deceased, being charged by law, with the
duty of burial, authorizes dissection for the purpose
of ascertaining the cause of death, and no further.
S 349. Every person who makes or causes or pro-
cures to be made any dissection of the body of a
human being, except by authority of law, or in pur-
suance of a permission given by the deceased, is
guilty of a misdemeanor.
$350. In all cases in which a dissection has been
made, the provisions of this chapter, requiring the
burial of a dead body, and punishing interference
with or injuries to a dead body, apply equally to the
remains of the body dissected, as soon as the lawful
purposes of such dissection have been accomplished.
S 351. All provisions of this chapter requiring the
of a human burial of a dead body, or punishing interference with
or injuries to a dead body, apply equally to any dead
limb or member of a human body, separated there-
from during lifetime.
9
OF THE STATE OF NEW YORK.
131
charged
with duty
of burial.
S 352. The duty of burying the body of a deceased Who are
person devolves upon the persons hereinafter specified:
1. If the deceased were a married woman the duty
of burial devolves upon her husband;
2. If the deceased were not a married woman, but
left any kindred, the duty of burial devolves upon
the person or persons in the same degree nearest of
kin to the deceased, being of adult age, and within
this state, and possessed of sufficient means to defray
the necessary expenses;
3. If the deceased left no husband, nor kindred,
answering the foregoing description, the duty of
burial devolves upon the coroner conducting an in-
quest upon the body of the deceased, if any such
inquest is held, if none, then upon the persons
charged with the support of the poor in the locality
in which the death occurs;
4. In case the person upon whom the duty of
burial is cast by the foregoing provisions omits to
make such burial within a reasonable time, the duty
devolves upon the person next specified; and if all
omit to act, it devolves upon the tenant, or, if there
is no tenant, upon the owner of the premises, or mas-
ter, or, if there is no master, upon the owner of the
vessel in which the death occurs or the body is found.
$353. Every person upon whom the duty of making
burial of the remains of a deceased person is imposed
by law, who omits to perform that duty within a rea-
sonable time, is guilty of a misdemeanor; and, in
addition to the punishment prescribed therefor, is
liable to pay to the person performing the duty in
his stead, treble the expenses incurred by the latter in
making the burial, to be recovered in a civil action.
S 354. The person charged by law with the duty
of burying the body of a deceased person is entitled
to the custody of such body for the purpose of bury-
ing it; except that in the cases in which an inquest
is required by law to be held upon a dead body, by a
Punish-
ment for
omitting
to bury.
Who enti
tody of a
tled to cus-
body.
132
THE PENAL CODE
Unlawful
coroner, such coroner is entitled to its custody until
such inquest has been completed.
S 355. Every person who removes any part of the
dead body of a human being from any grave or other
thethedead. place where the same has been buried or from any
removal of
or interfe-
rence with
bodies
of
Purchasing
corpses for-
bidden.
place where the same is deposited while awaiting
burial, with intent to sell the same, or to dissect it
without authority of law, or from malice or wanton-
ness, is punishable by imprisonment in a state prison
not exceeding five years, or in a county jail not ex-
ceeding one year, or by a fine not exceeding five
hundred dollars, or by both such fine and imprison-
ment.
This section embraces the provisions of 2 Rev. Stat.,
688, § 13, extended so as to embrace the case of remov-
ing a part ouly of the remains of a deceased person, and
also to embrace the case of removal of remains while yet
unburied. In Reg. v. Sharpe (40 Eng. L. & Eq., 581), it
appeared that the prisoner had, without leave, entered a
burying ground, and without authority from the custo-
dians, had disinterred a corpse, and removed it. The
removal was conducted in a proper manner, the corpse
was that of the prisoner's mother, and his motive for the
removal was to bury her remains in a church-yard with
the body of his father, then recently deceased. Held,
that the disinterment was a misdemeanor. The mere
fact that the defendant acted from praiseworthy motives,
was no defense. Neither does the English law recognize
the right of any one child to the corpse of its parent. It
recognizes no property in a corpse. Nor will relation-
ship justify the taking of a corpse away from the grave
where it has been buried.
The present statute of this state, however, from which
the section in the text is taken, has regard to the
motives from which the act is done. The Commissioners
have adhered to this principle; leaving a disinterment to
pass without criminal punishment if the unworthy mo-
tives specified in the section are not proved to have actu-
ated the defendant, and if there was nothing in the
manner of performing it, amounting to an offense under
other provisions of the Code.
S 356. Every person who purchases, or who receives,
except for the purpose of burial, any dead body of a
human being, knowing that the same has been re-
moved contrary to the last section, is punishable by
!
OF THE STATE OF NEW YORK.
133
imprisonment in a state prison not exceeding five
years, or in a county jail not exceeding one year, or
by a fine not exceeding five hundred dollars, or by
both such fine and imprisonment.
See 2 Rev. Stat., 688, § 14.
interfe-
places of
S 357. Every person who opens any grave or other Unlawful
place of burial, temporary or otherwise, or who breaks rence with
open any building wherein any dead body of a human burial.
being is deposited while awaiting burial, with intent,
either:
1. To remove any dead body of a human being for
the purpose of selling the same, or for the purpose of
dissection; or,
2. To steal the coffin, or any part thereof, or any-
thing attached thereto, or connected therewith, or the
vestments or other articles buried with the same,
Is punishable by imprisonment in a state prison
not exceeding two years, or in a county jail not ex-
ceeding six months, or by a fine not exceeding two
hundred and fifty dollars, or by both such fine and
imprisonment.
2 Rev. Stat., 688, § 15.
S 358. Whenever a cemetery or other place cf
burial is lawfully authorized to be removed from one
place to another, the right and duty to disinter,
remove and rebury the remains of bodies there
lying buried, devolves upon the persons named in
section 352, in the order in which they are there
named; and, if they all fail to act, then upon the
lawful custodians of the place of burial so removed.
Every omission of such duty is punishable in the
same manner as other omissions to perform the duty
of making burial are made punishable by section
353.
S359. Every person who arrests or attaches any
dead body of a human being upon any debt or
demand whatever, or detains or claims to detain it
for any debt or demand, or upon any pretended lien
or charge, is guilty of a misdemeanor.
Remova
burial place
from one
to another.
Arresting
or attach-
ing a dead
body.
134
THE PENAL CODE
Disturbing
funerals.
Defacing
tombs,
monu-
ments, &c.
Unlawful
dissection.
$ 360. Every person who willfully disturbs, inter-
rupts or disquiets any assemblage of people met for
the purpose of any funeral; or who, without autho-
rity of law, obstructs or detains any persons engaged
in carrying or accompanying any dead body of a
human being to a place of burial, is guilty of a mis-
demeanor.
S 361. Every person who willfully defaces, breaks,
destroys or removes any tomb, monument or grave-
stone erected to any deceased person, or any me-
mento or memorial, or any ornamental plant, tree
or shrub appertaining to the place of burial of a
human being, without authority from the owner of
the soil, and husband or wife, or if there be no hus
band or wife, then from the next of kin of the deceased,
is guilty of a misdemeanor.
1
S 362. Every person who violates any of the pro-
visions of sections 845, 846, or 847 of the Political
Code, relative to dissection, is guilty of a misde-
meanor.
Indecent
exposures,
CHAPTER VII.
INDECENT EXPOSURES, OBSCENE EXHIBITIONS, BOOKS
AND PRINTS, AND BAWDY AND OTHER DISORDERLY
HOUSES.
SECTION 363. Indecent exposures, exhibitions, pictures, &c.
364. Seizure of indecent articles authorized.
365. Their character to be summarily determined.
366. Their destruction.
367. Keeping bawdy house.
368. Keeping disorderly house.
369. Letting building for unlawful purposes.
S 363. Every person who, willfully and lewdly,
exhibitions, either:
pictures, &c
1. Exposes his person, or the private parts thereof,
in any public place, or in any place where there are
present other persons to be offended or annoyed
thereby; or,
:
1
OF THE STATE OF NEW YORK.
135
2. Procures, counsels or assists any person so to
expose himself, or to take part in any model artist
exhibition, or to make any other exhibition of him-
self to public view, or to the view of any number of
persons, such as is offensive to decency, or is adapted
to excite to vicious or lewd thoughts or acts; or,
3. Writes or composes, stereotypes, prints, pub-
lishes, sells, distributes, or keeps for sale, or exhibits
any obscene or indecent writing, paper or book, or
designs or copies, draws or engraves, paints, or other-
wise prepares any obscene or indecent picture or print,
or moulds, cuts, casts, or otherwise makes any obscene
or indecent figure; or,
4. Writes, composes or publishes any notice or
advertisement of any such writing, paper, book,
picture, print or figure; or any notice or advertise-
ment of any cure, specific or medicine for venereal
or other kindred diseases, or for producing or facili-
tating menstruation, or for producing or facilitating
a miscarriage in females; or,
5. Sings any lewd or obscene song, ballad or other
words, in any public place or in any place where there
are persons present to be annoyed thereby,
Is guilty of a misdemeanor.
See Reg. v. IIolmes, 22 Law & J. (M. C.), 122;
Reg. v. Watson, 2 Cox Cr. Cus., 376; Reg.
v. Webb, 3 Id., 183; Reg. v. Orchard, Id.,
2-18; Dugdale v. Queen, 1 El. & B., 435.
Seizure of
indecent
authorized.
S 364. Every person who is authorized or enjoined
to arrest any person for a violation of subdivision 3 articles
of the last section, is equally authorized and enjoined
to seize any obscene or indecent writing, paper, book,
picture, print or figure found in possession or under
the control of the person so arrested, and to deliver
the same to the magistrate before whom the person
so arrested is required to be taken.
Provisions regulating the issuing and execution of
search warrants, applicable to cases, among others, where
it is desired to discover. property which is in possession
of any person with intent to use it as the means of com-
136
THE PENAL CODE
Their
character
to be sum-
marily de-
termined.
Their de-
struction.
Keeping
bawdy
house.
Keeping
disorderly
house.
Letting
building for
unlawful
purposes.
mitting a public offense, are reported, Code Cr. Pr., §§
962, 883.
S 365. The magistrate to whom any obscene or in-
decent writing, paper, book, picture, print or figure,
is delivered pursuant to the foregoing section, shall,
upon the examination of the accused, or, if the ex-
amination is delayed or prevented, without awaiting
such examination, determine the character of such
writing, paper, book, picture, print or figure, and if
he finds it to be obscene or indecent he shall cause the
same to be destroyed, or to be delivered to the district
attorney of the county in which the accused is liable
to indictment or trial, as the interests of justice in his
judgment require. But not more than two copies
of any one writing, paper, book, picture, print or
figure, shall be delivered to the district attorney.
$366. Upon the conviction of the accused such
district attorney shall cause any writing, paper, book,
picture, print or figure, in respect whereof the ac-
cused stands convicted and which remains in the pos-
session or under the control of such district attorney,
to be destroyed.
S 367. Every person who keeps any bawdy house,
house of ill-fame, of assignation, or of prostitution,
or any other house or place for persons to visit for
unlawful sexual intercourse or for any other lewd, ob-
scene or indecent purpose, is guilty of a misdemeanor.
S 368. Every person who keeps any disorderly
house, or any house of public resort by which the
peace, comfort or decency of the immediate neigh-
borhood is habitually disturbed, or who keeps any inn
in a disorderly manner, is guilty of a misdemeanor.
Sce 2 Bish. Cr. L., § 251.
S 369. Every person who lets any building or por-
tion of any building knowing that it is intended to
be used for any purpose declared punishable by this
chapter, or who otherwise permits any building or
1
1
OF THE STATE OF NEW YORK.
137
portion of any building to be so used, is guilty of a
misdemeanor.
See 2 Rev. Stat., 702, § 29; Abrahams v. State, 4
Iowa, 541; State v. Abrahams, 6 Clarke, 117.
CHAPTER VIII.
LOTTERIES.
SECTION 370. "Lottery" defined.
371. Lottery declared a public nuisance.
372. Setting up lotteries.
373. Selling lottery tickets.
374. Buying lottery tickets.
375. Advertising lotteries.
376. Offering property for disposal dependent upon the drawing
of any lottery.
377. Lottery offices.
378. Advertising lottery offices.
379. Insuring lottery tickets, &c.
380. Advertising offers to insure lottery tickets.
381. Property offered for disposal in lotteries, forfeited.
382. Letting building for lottery purposes.
383. Lotteries out of this state.
384. Advertisements by persons out of the state.
defined.
S 370. A lottery is any scheme for the disposal or "Lottery"
distribution of property by chance among persons
who have paid or promised or agreed to pay any
valuable consideration for the chance of obtaining
such property or a portion of it, or for any share of,
or interest in such property, upon any agreement,
understanding or expectation that it is to be distri-
buted or disposed of by lot or chance; whether called
a lottery, a raffle, or a gift enterprise, or by whatever
name the same may be known.
See 1 Rev. Stat., 665, § 22; Governor of Alms House
v. American Art Union, 7 N. Y., 228; Bouvier's Law
Dict., tit. Lottery; Mass. Gen. Stat., 823, § 1. In the
popular use of the above mentioned terms a lottery is a
distribution by chance of several prizes among purchasers
of separate chances: a raffle is a disposal by chance of a
single prize among purchasers of separate chances; and
a gift enterprise is a disposal of property in mass to a
body of shareholders, upon an understanding or expecta-
tion that they will decide it among themselves by chance.
18
138
THE PENAL CODE.
Lottery de-
clared a
But as all schemes of this description aro involved in a
common condemnation and punishment, the retaining of
these distinctions in the statute book will serve no im-
portant purpose in defining the offense, while it will
embarrass prosecutions by suggesting questions as to the
requisite averments in the indictment. The Commissiou-
ers have, therefore, defined the word "lottery" broadly
enough to cover all these homogeneous devices, in order
that that word may be intelligibly used as including all.
As to unlawfulness of "gift enterprises," see Wooden
v. Shotwell, 4 Zabr., 789; Bell v. State, 5 Sneed, 507.
S 371. Every lottery is unlawful and a common
public nui- and public nuisance.
sance.
Setting up
lotteries.
See 1 Rev. Stat., 665, § 26; Const. of 1846, art. 1, §
10. This provision of the Constitution, viz.: "Nor shall
any lottery hereafter be authorized, or any sale of lottery
tickets allowed within this state;" has rendered obsolete
many of the distinctions of our former laws relative to
lotteries, and has enabled the Commissioners to present
provisions much more brief and simple than those of
the Revised Statutes and subsequent enactments, while
they are also in reality inore stringent.
It may here be remarked that, in view of the modifi-
cation of the law, since the enactment of the Revised
Statutes, by which all lotteries are made unlawful, the
Commissioners have regarded lottery tickets as no longer
the subject of property which the law will be sedulous
to protect; and they have omitted those provisions of
the Revised Statutes which made forgery and larceny of
such tickets punishable. The reasons upon which the
forgery of foreign bank notes of a particular denomina-
tion has been held criminal notwithstanding the circu-
lation of bills of such denomination has been made
unlawful, are not considered fully applicable to the case
of lottery tickets.
S 372. Every person who contrives, prepares, sets
up, proposes or draws any lottery, is punishable by a
fine equal to double the amount of the whole sum or
value for which such lottery was made; and if such
amount cannot be ascertained, then by imprisonment
in a state prison not exceeding two years, or by im-
prisonment in a county jail not exceeding one year,
or by a fine of two thousand five hundred dollars, or
by both such fine and imprisonment.
See 1 Rev. Stat., 665, § 27.
OF THE STATE OF NEW YORK.
139
lottery
S373. Every person who sells, gives, or in any Selling
manner whatever furnishes or transfers to or for any tickets.
other person, any ticket, chance, share or interest, or
any paper, certificate or instrument, purporting or
represented or understood to be, or to represent any
ticket, chance, share or interest in or depending upon
the event of any lottery, is guilty of a misdemeanor.
1 Rev. Stat., 666, § 29.
lottery
$ 374. Every person who buys, or in any manner Buying
whatever accepts or receives for himself or another, tickets.
any ticket, chance, share or interest, or any paper,
certificate, or instrument, purporting or represented
or understood to be, or to represent any ticket, chance,
share or interest in or depending upon the event of
any lottery, forfeits ten dollars, to be recovered by the
persons charged with the support of the poor in the
locality where the offense was committed.
lotteries.
S 375. Every person who, by writing or printing, Advertising
by circulars or letters, or in any other way, advertises
or publishes any account of any lottery, stating when
or where the same is to be or has been drawn, or
what are the prizes or any of them therein, or the
price of a ticket or of any share or interest, or where
it may be obtained, or in any way aiding or assisting
the same, or adapted to induce persons to adven-
ture therein, is guilty of a misdemeanor.
Founded upon 1 Rev. Stat., 665, § 28; the punishment
being modified to correspond with other provisions of the
Code.
property
dependent
upon the
any lottery.
drawing of
S 376. Every person who offers for sale, distribu- Offering
tion or disposition in any way, any real or personal for disposal
property, or things in action, or any interest therein,
to be determined by lot or chance that shall be de-
pendent upon the drawing of any lottery, within or
out of this state; and every person who sells, fur-
nishes or procures, or causes to be sold, furnished or
procured in any manner whatsoever, any chance
or share, or any interest whatever, in any property
140
THE PENAL CODE
Lottery
offices.
Advertising
lottery
offices.
Insuring
lottery
offered for sale, distribution or disposition in viola-
tion of this section, or any ticket or other evidence
of any chance, share or interest in such property, is
guilty of a misdemeanor.
See 1 Rev. Stat., 666, § 30.
S377. Every person who opens, sets up or keeps,
by himself, or by any other person or persons, any
office or other place for registering the numbers of
any ticket in any lottery, or for making, receiving or
registering any bets or wagers upon the drawing, de-
termination or result of any lottery, is punishable by
imprisonment in a county jail not exceeding one year,
or by a fine not exceeding one thousand dollars.
1 Rev. Stat., 667, §§ 34, 37.
S 378. Every person who by writing or printing,
by circulars or letters, or in any other way, advertises
or publishes any account of the opening, setting up or
keeping of any office or other place for either of the
purposes prohibited by the last section, is guilty of a
misdemeanor.
See 1 Rev. Stat., 667, § 37; Id., 665, § 28.
S 379. Every person who insures or receives any
tickets, &c. consideration for insuring for or against the drawing
of any ticket, share or interest in any lottery, or for
or against the drawing of any number, or ticket, or
number of any ticket in any lottery; and every per-
son who receives any valuable consideration upon
any agreement to pay any sum, or to deliver any
property or thing in action in the event that any
ticket, share or interest in any lottery, or any number,
or ticket, or number of any ticket in any lottery shall
prove fortunate or unfortunate, or shall be drawn or
not drawn on any particular day, or in any particular
order; and every person who promises, agrees or
offers to pay any sum of money or to deliver any
property or thing in action, or to do, or forbear to do
anything for the benefit of any other person, with or
!
OF THE STATE OF NEW YORK.
141
without consideration, upon any event whatever con-
nected with any lottery, is guilty of a misdemeanor.
See 1 Rev. Stat., 667, §§ 36, 37.
S 380. Every person who by writing or printing, by
circulars or letters, or in any other way, advertises or
publishes any offer, notice, or proposal for any viola-
tion of the last section, is guilty of a misdemeanor.
Advertising
offers to
insure lot-
tery tickets.
offered for
lotteries
S 381. All property offered for sale, distribution or Property
disposition, in violation of the provisions of this chap- disposal in
ter, is forfeited to the people of this state, as well forfeited.
before as after the determination of the chance on
which the same was dependent. And it is the duty
of the respective district attorneys, to demand, sue
for and recover, in behalf of this state, all property
so forfeited, and to cause the same to be sold when
recovered, and to pay the proceeds of the sale of such
property, and any moneys that may be collected in
any such suit, into the county treasury, for the benefit
of the poor.
See 1 Rev. Stat., 666, § 31.
building
purposes.
S 382. Every person who lets, or permits to be used Letting
any building or portion of any building, knowing for lottery
that it is intended to be used for any of the purposes
declared punishable by this chapter, is guilty of a mis-
demeanor.
S 383. The provisions of this chapter apply in
respect to lotteries drawn or to be drawn out of this
state, whether authorized or not by the laws of the
state where they are drawn or to be drawn, in the
same manner as to lotteries drawn or to be drawn
within this state.
Lotteries
state.
out of this
ments by
of this
$384. The provisions of sections 375 and 378 are Advertise-
applicable wherever the advertisement was pub- persons out
lished, or the letter or circular sent or delivered state.
through or in this state, notwithstanding the person
causing or procuring the same to be published, sent or
delivered, was out of this state at the time of so doing.
142
THE PENAL CODE
Keeping
gambling
apparatus
in certain
places.
CHAPTER IX.
GAMING.
SECTION 385. Keeping gambling apparatus in certain places.
386. Punishment.
387. Gambling apparatus declared a nuisance.
388. Winning at play by fraudulent meaus.
389. Exacting payment of money won at play.
390. Winning or losing upwards of twenty-five dollars.
391. Witness' privilege.
392. Keeping gambling establishments or letting places for gam-
bling purposes.
393. Keeping gambling tables, promoting prohibited games, &c.,
prohibited.
394. Seizure of gambling implements authorized.
395. Such implements to be destroyed or delivered to district
attorney.
396. Such implements to be destroyed upon conviction.
397. Persuading another person to visit gambling places.
398. Certain officers directed to prosecute offenses under this
chapter.
399. Duty of masters to suppress gambling on board their vessels.
400. Racing of animals for a stake.
401. Racing near a court.
S 385. It is unlawful to maintain or keep any table,
cards, dice or any other article or apparatus whatever,
useful or intended to be used in playing any game of
cards or faro, or other game of chance, upon which
money is usually wagered, at either of the following
places:
1. Within any building, or the appurtenances or
grounds connected with any building in which any
court of justice usually holds its sessions; or any
building, any part of which is usually occupied by
any religious corporation, or any incorporated bene-
volent, charitable, scientific or missionary society, or
any incorporated academy, high school, college or
other institution of learning, or any library company,
or building and mutual loan company;
2. Within any building or the appurtenances or
grounds connected with any building, while votes are
being received or canvassed therein at any election
OF THE STATE OF NEW YORK.
143
for any officer of this state, or of the United States;
or while any public meeting is being held therein;
3. Within the distance of one mile from any
grounds upon which any training, review, drill or
exercise of any military organization created or per-
mitted by the laws of this state, is proceeding, or
upon which any public fair, exhibition, exercise or
meeting is being held or conducted, in the open air;
4. Within any vessel lying in, or navigating any
of the waters of this state; or owned, or navigated
by, or for account of any corporation created by the
laws of this state.
§ 386. Every person who knowingly violates the Punish
last section is guilty of a misdemeanor.
ment.
apparatus
$387. Every article or apparatus maintained or Gambling
kept in violation of section 385, is a common and
public nuisance.
S 388. Every person who, by any fraud, cheat, or
false pretense whatsoever, while playing at any
game, or while bearing a share in any wagers played
for, or while betting on the sides or hands of such as
play, wins or acquires to himself, or to any other,
any sum of money or other valuable thing, is guilty
of a misdemeanor.
See 1 Rev. Stat., 662, § 11. The words, "and on con-
viction shall be deemed infamous," at the close of this
section, in the Revised Statutes, are omitted.
$389. Every person who exacts or receives from
another, directly or indirectly, any valuable con-
sideration, by reason of the same having been won
by playing at cards, faro, or any other game of
chance, or any bet or wager whatever upon the
hands or sides of players, forfeits five times the
value of the consideration so exacted or received,
to be recovered in a civil action, by the persons
charged with the support of the poor in the locality
declared a
nuisance.
Winning at
means.
play by
fraudulent
Exacting
money won
payment of
at play.
144
THE PENAL CODE
Winning or
losing up-
wards of
$25.
Witness'
privilege.
in which the offense was committed, for the benefit
of the poor.
See 1 Rev. Stat., 662, § 12.
Recommended as a substitute for 1 Rev. Stat., 662, §
12, which is as follows:
"Every person who shall, at any one time or sitting,
win, by playing at any game, of any one or more persons,
any sum or value, shall forfeit five times the value of tho
money or other things so won, to be recovered by and in
the name of the overseers of the poor of the town for
the use of the poor."
The offense consists, when carefully considered, not so
much in winning the money as in exacting or receiving
payment of the money when won.
S 390. Every person who wins or loses at play or
by betting, at any time, the sum or value of twenty-
five dollars or upwards, within the space of twenty-
four hours, is punishable by a fine not less than five
times the value or sum so lost or won, to be reco-
vered in a civil action, by the persons charged with
the support of the poor in the place where the
offense was committed, for the benefit of the poor.
1 Rev. Stat., 662, § 13.
S 391. No person shall be excused from giving any
testimony or evidence upon any investigation or pro-
ceeding for a violation of this chapter, upon the ground
that such testimony would tend to convict him of a
crime; but such testimony or evidence shall not be
received against him upon any criminal investigation
or proceeding.
Omitted provisions. The following provision of the
Revised Statutes is omitted for the reason that it per-
tains to evidence in civil causes, and if retained at all
should be transferred to the Code of Civil Procedure:
"No person, other than the parties in the cause, shall
be incapacitated or excused from testifying, touching any
offense committed against any of the foregoing provi
sions relating to gaming, by reason of his having played,
betted or staked, at any game, as herein prohibited; but
the testimony of any such person shall not be used
against him in any suit or prosecution hereby authorized."
1 Rev. Stat., 663, § 18.
The following provision of the Revised Statutes is
$
!
OF THE STATE OF NEW YORK.
145
omitted because it is anomalous, and amounts to confer-
ring a pardoning power upon the court:
"Any person offending against any of the provisions
contained in this article, who shall be admitted and ex-
amined as a witness in any court of record, to sustain
any suit or prosecution herein authorized, may, by rule
of the court, be discharged from all penalties by reason
of such offense, if such person hath not been before
convicted thereof, or of a similar offense, and if it appear
to the court satisfactorily that such person was duped or
enticed into the commission of the offense by those
against whom he shall testify." 1 Rev. Stat., 664, § 21.
As to witness' privilege, see note to section 200.
Keeping
establish-
gambling
ment or let
ting places
for gam-
S 392. Every person who keeps any building or
part of any building, or any vessel or float to be used
or occupied for gambling, and every owner, agent or
superintendent of any such place who knowingly lets bling pur
the same or allows it to be used or occupied for
gambling, is guilty of a misdemeanor.
See Laws of 1851, ch. 504, § 1.
S 393. Every person who, for gambling purposes,
keeps or exhibits any gambling table, establishment,
device or apparatus, or is guilty of dealing "faro"
or banking for others to deal "faro," or acting as
"look-out" or game-keeper for the game of "faro,"
or any other banking game where money or pro-
perty is dependent upon the result, or who sells or
vends what are commonly called lottery policies, or
any writing, card, paper or document in the nature
of a bet, wager, or insurance upon the drawing or
drawn numbers of any public or private lottery, or
indorses a book or any other document for the pur-
pose of enabling others to sell or vend lottery policies,
is deemed a common gambler, and is punishable as
for a misdemeanor.
Laws of 1851, ch. 504, § 2, as amended Laws of 1855,
ch. 214, the punishment being modified. By the exist-
ing laws the punishment prescribed is that the accused
shall be sentenced "to not less than ten days' hard labor
in the penitentiary, or not more than two years' hard
labor in the state prison, and be fined in any sum not
more than one thousand dollars, to be paid into the
poses.
Keeping
tables, pro-
hibited
gambling
moting pro-
games, &c.,
prohibited.
19
146
THE PENAL CODE
Seizure of
gambling
authorized.
county treasury where such conviction shall tako place,
for the use of the common schools therein, to be divided
among the school districts in that county, in the same
manner as the school money of the state is divided
among said districts, and in default thereof shall remain
imprisoned until such fine be remitted or paid." This
punishment is anomalous, and the offense has, therefore,
been declared a misdemeanor, in order to harmonize the
penalties throughout the Code.
S 394. Every person who is authorized or enjoined
Implements to arrest any person for a violation of the provisions
of this chapter, is equally authorized and enjoined to
seize any table, cards, dice or other article or appara-
tus, suitable to be used for gambling purposes, found
in the possession or under the control of the person
so arrested, and to deliver the same to the magistrate
before whom the person so arrested is required to be
taken.
Such imple-
ments to be
destroyed
or delivered
to district
attorney.
Such imple-
ment to be
Provisions regulating the issuing and execution of
search warrants, applicable to cases, among others,
where it is desired to discover property which is in
possession of any person with intent to use it as the
means of committing a public offense, are reported,
Code Cr. Pro., §§ 861-883.
S 395. The magistrate to whom any thing suitable
to be used for gambling purposes is delivered pursu-
ant to the foregoing section, shall, upon the examina-
tion of the accused, or if such examination is delayed
or prevented, without awaiting such examination,
determine the character of the thing so delivered
to him, and whether it was actually employed by the
accused in violation of the provisions of this chapter;
and if he finds that it is of a character suitable to be
used for gambling purposes, and that it has been used
by the accused in violation of this chapter, he shall
cause it to be destroyed or to be delivered to the dis-
trict attorney of the county in which the accused
is liable to indictment or trial, as the interests of
justice, in his judgment, require.
S396. Upon the conviction of the accused such
destroyed district attorney shall cause any such thing suitable
OF THE STATE OF NEW YORK.
147
viction.
to be used for gambling purposes, in respect whereof upon con-
the accused stands convicted, and which remains in
the possession or under the control of such district
attorney, to be destroyed.
$ 397. Every person who persuades another to visit
any building or part of a building, or any vessel or
float used or occupied for the purpose of gambling,
in consequence whereof such other person gambles
therein, is guilty of a misdemeanor; and in addition
to the punishment prescribed therefor, is liable to such
other person in an amount equal to any money or
property lost by him at play at such place, to be re-
covered in a civil action.
Founded on Laws of 1851, ch. 504, § 2.
S 398. It is the duty of all sheriffs, police officers,
constables, and prosecuting or district attorneys to
inform against and prosecute all persons whom they
have credible reason to believe are offenders against
the provisions of this chapter; and any omission so
to do is punishable by a fine not exceeding five hun-
dred dollars.
See Laws of 1851, ch. 504, § 6.
$399. If any commander, owner or lessee of any
vessel or float, knowingly permits any gambling for
money or property on board such vessel or float, and
does not, upon his knowledge of the fact, immedi-
ately prevent the same, he is punishable by a fine not.
exceeding five hundred dollars; and in addition
thereto is liable to any party losing any money or
property by means of any gambling permitted in
violation of this section, in a sum equal to the money
or property, to be recovered in a civil action.
See Laws of 1851, ch. 504, § 7.
$400. All racing or trial of speed between horses
or other animals for any bet, stake or reward, except
such as is allowed by special laws, is a common nui-
sance; and every person acting or aiding therein, or
making or being interested in any such bet, stake or
Persuading
person to
another
visit gamb-
ling places.
officers
Certain
directed to
offenses
chapter.
prosecute
under this
Duty of
suppress
on board
masters to
gambling.
their ves-
sels.
Racing of
a stake,
animals for
148
THE PENAL CODE
reward is guilty of a misdemeanor; and in addition
to the penalty prescribed therefor he forfeits all title
or interest in any animal used with his privity in such
race or trial of speed, and in any sum of money or
other property betted or staked upon the result
thereof.
See Rep. Pol. Code, §§ 775, 777, 778.
Pawnbrok-
ing without
a license.
Refusal to
exhibit
stolen
goods to
owner.
Selling be-
fore time
to redeem
has expired
and refu-
sing to dis-
CHAPTER X.
PAWNBROKERS.
SECTION 401. Pawnbroking without a license.
402. Refusing to exhibit stolen goods to owner.
403. Selling before time to redeem has expired and refusing to
disclose particulars of sale.
S 401. Every person who carries on the business
of a pawnbroker, by receiving goods in pledge for
loans at any rate of interest above that allowed by
law, except by authority of a license from a municipal
corporation empowered to grant licenses to pawn-
brokers, is guilty of a misdemeanor.
See 1 Rev. Stat., 711, § 9.
S 402. Every pawnbroker or person carrying on the
business of a pawnbroker, and every junk dealer, who
having received any goods which have been embez-
zled or stolen, refuses or omits to exhibit them, upon
demand, during the usual business hours, to the
owner of said goods or his agent authorized to de-
mand an inspection thereof, is guilty of a mis-
demeanor.
S 403. Every pawnbroker who sells any article re-
ceived by him in pledge, before the time to redeem
the same has expired, and every pawnbroker who
close parf willfully refuses to disclose the name of the pur-
chaser and the price received by him for any article
received by him in pledge, and subsequently sold, is
guilty of a misdemeanor.
ticulars of
sale.
OF THE STATE OF NEW YORK.
149
TITLE XI.
OF OTHER INJURIES TO PERSONS.
SECTION 404. Acts of intoxicated physicians.
405. Willfully poisoning food, &c.
406. Overloading passenger vessel.
407. Mismanagement of steamboats.
408. Mismanagement of steam boilers.
409. Fictitious copartnership names.
410. Counterfeiting trade marks.
411. Keeping dies, &c., with intent to counterfeit trade marks.
412. Selling goods which bear counterfeit trade marks.
413. Colorable imitations of trade marks.
414. "Trade mark" defined.
415. "Goods" defined.
416. “Affixing" defined.
417. Refilling or selling stamped mineral water bottles, &c.
418. Keeping such bottles with intent to refill or sell them.
419. Search for bottles kept in violation of law, authorized.
420. Defacing marks upon wrecked property.
421. Defacing marks upon logs or lumber.
422. Officer unlawfully detaining wrecked property.
423. Fraud in affairs of limited partnership.
424. Solemnizing unlawful marriages.
425. Unlawful confinement of idiots, insane persons, &c.
426. Taking usury.
427. Reconfining persons discharged upon writ of deliverance.
428. Concealing persons entitled to writ of deliverance.
429. Innkeepers and carriers refusing to receive guests and
passengers.
S 404. Every physician, who, being in a state of
intoxication, administers any poison, drug or medi-
cine, or does any other act as such physician, to
another person, by which the life of such other is
endangered, is guilty of misdemeanor.
Sec 2 Rev. Stat., 694, § 22; and supra, § 257.
Acts of in-
physicians.
toxicated
poisoning
S 405. Every person who willfully mingles any willfully
poison with any food, drink or medicine, with intent, &c.
that the same shall be taken by any human being to
his injury, and every person who willfully poisons
any spring, well or reservoir of water, is punishable
by imprisonment in a state prison not exceeding ten
years, or in a county jail not exceeding one year, or
150
THE PENAL CODE
Overload-
ing passen-
ger vessel.
Misman-
agement of
by a fine not exceeding five hundred dollars, or by
both such fine and imprisonment.
2 Rev. Stut., 666, § 38.
S 406. Every person navigating any vessel for
gain, who willfully or negligently receives so many
passengers or such a quantity of other lading ou
board such vessel, that by means thereof such vessel
sinks or is overset or injured, and thereby the life
of any human being is endangered, is guilty of a
misdemeanor.
See 2 Rev Stat., 694, § 24.
S 407. Every captain or other person having charge
steamboats of any steamboat used for the conveyance of passen-
gers, or of the boilers and engines thereof, who, from
ignorance or gross neglect, or for the purpose of ex-
celling any other boat in speed, creates or allows to
be created such an undue quantity of steam as to
burst or break the boiler or other apparatus in which
it shall be generated, or any apparatus or machinery
connected therewith, by which bursting or breaking
human life is endangered, is guilty of a misdemeanor.
Emborlies the provision of 2 Rev. Stat., 694, § 25;
modified in expression to correspond with the analogous
provision of § 255 of this Code
Misman-
agement of
ors.
S 408. Every engineer or other person having
steam boil- charge of any steam boiler, steam engine, or other
apparatus for generating or employing steam, em-
ployed in any manufactory, railway or other me-
chanical works, who, willfully or from ignorance or
gross neglect, creates or allows to be created such an
undue quantity of steam as to burst or break the
boiler or engine or apparatus, or cause any other
accident whereby human life is endangered, is guilty
of a misdemeanor.
Fictitious
copartner-
Compare section 256 of this Code.
$409. Every person transacting any business in the
ship names. name of a person as a partner who is not interested in
his firm, or transacting business under a firm name in
OF THE STATE OF NEW YORK.
151
which the designation "and company" or "& Co." is
used without representing an actual partner, except in
the cases in which the continued use of a copartner-
ship name is authorized by law, is guilty of a mis-
demeanor.
·
Laws of 1833, ch. 281. Compare, also, Laws of 1849,
ch. 347; Laws of 1854, ch. 400; Laws of 1863, ch. 144;
which regulate the continued use of copartnership names.
S 410. Every person who willfully forges, counter-
feits or procures to be forged or counterfeited any
trade mark usually affixed by any person to any
goods of such person, with intent to pass off any
goods to which such forged or counterfeit trade mark
is affixed or intended to be affixed, as the goods of
such person, is guilty of a misdemeanor.
Founded upon Laws of 1862, ch. 306, § 1, the phrase-
ology being rendered more concise, and the punishment
being reduced from an imprisonment not less than six
months and not more than twelve or a fine not exceeding
five thousand dollars to that of a misdemeanor.
The subject of counterfeiting trade marks, including
the kindred topic of refilling and selling stamped mineral
water bottles, has very recently received the careful
attention of the Legislature. In 1845 an act was passed
(Laws of 1845, ch. 279,) punishing the forgery of stamps
or labels. In 1850, the provisions of this act were
somewhat enlarged. In 1862, both these acts were
repealed; and a more comprehensive and stringent
statute was passed (Laws of 1862, ch. 306), which, with
an amendment enacted in 1863 (Laws of 1863, ch. 209),
giving the party aggrieved a civil remedy, in addition to
the fine and imprisonment prescribed by the act of 1862,
embodies the law existing at the present time, upon the
general subject of counterfeiting trade marks. The kin-
dred offense of selling mineral waters, water-bottles, and
others bearing the stamp of a particular manufacturer
was made punishable by Laws of 1847, ch. 207; which
was amended by Laws of 1860, ch. 117.
In the sections in the text upon these subjects the
Commissioners have embodied the provisions of these
statutes, omitting some provisions not within the scope
of the Penal Code, and retrenching the phraseology and
modifying the measure of punishment to correspond with
the forms of expression used and penalties prescribed
throughout the Code. They have also adopted some of
the provisions of a very stringent English statute on this
subject, passed in 1862; the 25th & 26th Vict., ch. 88.
Counter-
feiting
trade marks
152
THE PENAL CODE
Kooping
dies, &c.,
to counter-
feit trade
marks.
S 411. Every person who, with intent to defraud,
with intent has in his possession any die, plate or brand, or any
imitation of the trade mark of any person, for the
purpose of making any counterfeit or imitation of
any description whatever of such trade mark, or of
selling the same when made, or of affixing the same
to any goods, and selling or offering the same for
sale or disposal as the original goods of any other
person; and every person who so uses or sells the
same, or who fraudulently uses the genuine trade
mark of another with intent to sell or offer for sale or
disposal any goods not the goods of the person to
whom such trade mark properly belongs, as genuine
and original, is guilty of a misdemeanor.
Selling
goods
counterfeit
Founded on Laws of 1862, ch. 306, § 2.
S 412. Every person who sells or keeps for sale any
which bear goods upon or to which any counterfeited trade mark
has been affixed, intended to represent such goods
as the genuine goods of another, knowing the same
to be counterfeited, is guilty of a misdemeanor.
trade
marks.
Colorable
imitations
of trade
marks.
Founded upon Laws of 1862, ch. 306, § 3; as
amended Laws of 1863, ch. 209, § 1.
S413. Every person who, with intent to defraud,
affixes or causes to be affixed to any goods, any des-
cription of label, stamp, brand, imprint, printed
wrapper, label or mark, which designates such goods
by any word or token which is wholly or so far the
same as to deceive or be calculated to deceive the
eye or the ear, as the word or any of the words or
tokens used by any other person as his trade mark,
and every person who knowingly sells, or keeps or
offers for sale any goods, or any box, bale, barrel,
bottle, case, cask, wrapper, or other package, with
any such label, stamp, brand, imprint, printed wrap-
per, ticket or mark, affixed to it, in case the person
affixing such mark, or selling, or keeping, or offering
for sale such goods, or box, bale, barrel, bottle, case,
cask, wrapper, or other package, was not the first
to employ such words as his trade mark, is guilty
OF THE STATE OF NEW YORK.
153
of a misdemeanor; and in addition to the punish-
ment prescribed therefor is also liable to the party
aggrieved in the penal sum of one hundred dollars
for each and every offense, to be recovered by him in
· a civil action.
Laws of 1862, ch. 306, § 4; as amended Laws of
1863, ch. 209, § 2.
mark"
$414. The word "trade mark," as used in the "Trade
sections preceding, includes every description of defined.
word, letter, device, emblem, stamp, imprint, brand,
printed ticket, label or wrapper, usually affixed by
any mechanic, manufacturer, druggist, merchant or
tradesman, to denote any goods to be goods import-
ed, manufactured, produced, compounded or sold by
him; other than any name, word or expression
generally denoting any goods to be of some particu-
lar class or description.
See Stat., 25 and 26 Vict., ch. 88, § 1.
defined.
S415. The word "goods," as used in the sections "Goods"
preceding, includes every kind of goods, wares, mer-
chandise, compound or preparation, which may be
lawfully kept or offered for sale.
defined.
S416. The offense of affixing a false trade mark "Afixing"
to goods is equally complete within the meaning of
sections 410, 412, and 413, whether such mark is
affixed to the goods themselves, or to any box, bale,
barrel, bottle, case, cask, wrapper, or other package
or vessel, or any cover or stopper thereof, in which
such goods are put up.
See Stat., 25 and 26 Vict., ch. 88.
or selling
stamped
water bot-
mineral
tles, &c.
$ 417. Whenever any person engaged in manufac- Refilling
turing, bottling, or selling in bottles, soda, mineral
waters, porter, ale, cider or small beer, has filed and
published, in the manner authorized by law, a de-
scription of a name, mark, or label, usually stamped
by him in the bottles containing such beverage,
every other person who, without the written consent
of such manufacturer or dealer, refills with any
20
154
THE PENAL CODE
Keeping
such bottles
to refill or
sell them.
beverage, whether genuine or otherwise, with intent
to sell the same, any bottles stamped with such
name, mark, or label; and every person who sells,
disposes of, purchases or traffics in such bottles, is
liable to a penalty of fifty cents for each and every
bottle so filled, sold, bought, disposed of, or trafficked
in, for the first offense, and five dollars for each and
every bottle so filled, sold, bought, disposed of, or
trafficked in, for every subsequent offense.
Laws of 1860, ch. 117, § 1; modified to correct the
defect pointed out in Mullins v. People (24 N. Y., 398;
S. C., 23 How. Pr., 289); that the keeping of bottles
secreted upon the premises of the defendant subjects
him, under the language of the act of 1860, to a search
warrant to discover them, but not to any criminal
penalty.
S418. Every person who keeps any bottles such
with intent as are designated in the last section, without the
written consent of the manufacturer so to do, unless
it appears that they were not kept with intent to
refill or use or sell them in violation of the last sec-
tion, is liable to the penalty therein prescribed.
Search for
bottles kept
of law, au-
thorized.
S 419. Whenever any manufacturer or dealer de-
in violation signated by section 417, or his agent, shall make
oath or affirmation before any magistrate that he
has reason to believe, and does believe, that any of
his bottles stamped and registered as mentioned in
said section are being unlawfully used by any person
or persons selling or manufacturing mineral water or
other beverages, or that any junk dealer, or vender
of bottles, has any of such bottles secreted in any
place, such magistrate shall thereupon issue a search
warrant to discover and obtain the same under the
provisions of the Code of Criminal Procedure, which
are hereby declared to fully relate to the purposes of
this chapter; and the magistrate may summarily bring
or cause to be brought before him the person in whose
possession the bottles are found, to examine into the
circumstances of his possession, and if such magis-
trate, on summary examination, finds that such person
OF THE STATE OF NEW YORK.
155
has been guilty of a violation of section 417, such
magistrate shall proceed to impose the fine therein
prescribed, and, if the same be not paid, to commit
such person to prison for a term not exceeding fifteen
days.
See Laws of 1860, ch. 117, § 2.
marks upon
property.
S 420. Every person who defaces or obliterates the Defacing
marks upon wrecked property, or in any manner dis- wrecked
guises the appearance thereof with intent to prevent
the owner from discovering its identity, or who de-
stroys or suppresses any invoice, bill of lading or other
document tending to show the ownership, is guilty
of a misdemeanor.
Rep. Pol. Code, § 305.
✔
marks upon
ber.
S421. Every person who cuts out, alters or defaces Defacing
any mark made upon any log or lumber, whether logs or lum-
such mark be recorded or not, or puts a false mark
upon any log or lumber floating in any of the waters
of this state or lying upon land, is guilty of a misde-
meanor.
Rep. Pol. Code, § 295.
lawfully
S422. Every officer who, without authority of law officer un-
detains any wrecked property or the proceeds thereof, detaining
after the salvage and expenses chargeable thereon property
have been paid or offered to him, or who is guilty of
any fraud, embezzlement or extortion in the discharge
of his duties, or who violates any provision of Article
IV of Chapter I of Title III of the Political Code, is
guilty of a misdemeanor.
Rep. Pol. Code, § 303.
Fraud in
affairs of
S423. Every member of a limited partnership who
is guilty of any fraud in the affairs of the partnership, limited
is guilty of a misdemeanor.
See 1 Rev. Stat., 766, § 19.
partnership
ing unlaw
ful mar-
S 424. Every minister, or magistrate who solem-Solemniz-
nizes any marriage where either of the parties is riages.
156
THE PENAL CODE
Unlawful
confine-
ment of
idiots, in-
sane per-
sons, &c.
Taking
usury.
Reconfin-
ing per-
sons dis-
charged
upon writ
of deliver-
ance.
Concealing
persons
entitled to
writ of de-
liverance.
known to him to be within the age of legal consent,
or to be an idiot or an insane person, or any marriage
to which within his knowledge any legal impediment
exists, is guilty of a misdemeanor.
Corresponds with 2 Rev. Stat., 140, § 12; substituting
"insane person" for "lunatic."
$425. Every person who confines any idiot, luna-
tic or insane person in any other manner or in any
other place than is authorized or allowed by law, and
every person guilty of any harsh, cruel or unkind
treatment of, or any neglect of duty towards any
idiot, lunatic or insane person under confinement,
whether lawfully or not, is guilty of a misdemeanor.
See 1 Rev. Stat., 625, § 11.
S 426. Every person who directly or indirectly re-
ceives any interest, discount, or consideration upon
the loan or forbearance of any money, goods or things
in action, greater thau is allowed by law, is guilty of
a misdemeanor.
See 1 Rev. Stat., 773, § 15.
S 427. Every person who either solely or as a mem-
ber of a court, in the execution of a judgment, order or
process, knowingly recommits, imprisons or restrains
of his liberty, for the same cause, any person who has
been discharged from imprisonment upon a writ of
deliverance, is guilty of a misdemeanor; and in ad-
dition to the punishment, prescribed therefor, he for-
feits to the party aggrieved, one thousand dollars to
be recovered in a civil action.
Corresponds with Rep. Code Civ. Pro., § 1339.
S 428. Every person having in his custody or power
or under his restraint a party who, by the provisions of
Chapter V of Title II of Part III of the Code of Civil
Procedure, would be entitled to a writ of deliverance
or for whose relief a writ of deliverance has been
issued, who, with intent to elude the service of such
writ, or to avoid the effect thereof, transfers the party
!
OF THE STATE OF NEW YORK.
157
to the custody, or places him under the power or con-
trol of another, or conceals or changes the place of
his confinement, or who without lawful excuse refuses
to produce him, is guilty of a misdemeanor.
Rep. Code Civ. Pro. § 1340.
The provision of Ibid., § 1341, is substantially covered
by section 27 of this Code. The provision of 2 Rev.
Stat., 149, § 7, is omitted, as being merged in the preced-
ing provisions.
S 429. Every person, and every agent or officer of
any corporation, carrying on business as an inn-
keeper, or as a common carrier of passengers, who
refuses, without just cause or excuse, to receive and
entertain any guest, or to receive and carry any
passenger, is guilty of a misdemeanor.
Innkeepers
refusing to
and carriers
receive
guests and
passengers.
TITLE XII.
OF CRIMES AGAINST THE PUBLIC HEALTH AND
SAFETY.
SECTION 430. "Public nuisance" defined.
431. Unequal damage.
432. Maintaining a nuisance a misdemeanor.
433. Keeping gunpowder unlawfully.
434. Throwing gas tar into public waters.
435. Violation of quarantine laws, by master of vessel.
436. Giving false information relative to vessel, or permitting
persons to land before visit of health officers.
437. Landing from vessel before visit of health officers.
438. Going on board vessel at quarantine grounds, or entering
quarantine grounds without leave.
439. Violating quarantine regulations.
440. Obstructing health officer in performance of his duty.
441. Willful violation of health laws.
442. Unlicensed piloting.
143. Coasting steamers excepted.
444. Acting as port warden without authority.
445. Apothecary omitting to label drugs, or labeling them
wrongly.
158
THE PENAL CODE
"Public
nuisance"
defined
SECTION 446. Apothecary selling poison without recording the sale.
447. Refusing to exhibit record.
448. Selling poison without label.
449. Omitting to mark name upon package of hay.
450. Putting extraneous substances in packages of goods usually
sold by weight, with intent to increase weight.
451. Adulterating food, drugs, liquors, &c.
452. Disposing of tainted food.
453. Making or keeping slung shot.
454. Carrying upon the person, or using or attempting to use
slung shot.
455. Carrying concealed weapons.
456. Negligence in respect to fires.
457. Refusing to assist in extinguishing fire in the woods.
458. Obstructing attempts to extinguish fires.
459. Maintaining ferry without authority of law.
460. Violating condition of recognizance to keep a ferry.
461. Engineer omitting to ring bell or sound whistle when
locomotive crosses highway.
462. Intoxication of engineers, conductors and drivers upon
railroads.
463. Violations of duty by officers, agents or servants of rail-
road companies.
464. Duty of guarding ice cuttings.
465. How long such guards must be maintained.
466. Violation of duty to maintain guards around ice cuttings a
misdemeanor.
467. Using net or weir unlawfully in Hudson river.
468. Exposing person affected with a contagious disease, in a
public place.
469. Frauds practised to affect the market price.
470. Publishing false statements in newspapers.
471. Eavesdropping.
472. Racing upon highways.
S430. A public nuisance is a crime against the
order and economy of the state; and consists in
unlawfully doing any act or omitting to perform
any duty which act or omission either:
1. Annoys, injures or endangers the comfort, repose,
health or safety of any considerable number of per-
sons; or,
2. Offends public decency; or,
3. Unlawfully interferes with, obstructs, or tends to
obstruct, or renders dangerous for passage, any lake,
or any navigable river, bay, stream, canal or basin,
or any public park, square, street or highway; or,
1
OF THE STATE OF NEW YORK.
15.9
4. In any way renders any considerable number of
persons insecure in life, or the use of property.
Suggested as more appropriate for this Code than tho
definitions given in the Draft Civil Code, sections 1571,
1572, which are as follows:
"§ 1571. That is a nuisance which wrongfully causes
loss, harm, annoyance, or great apprehension of danger,
by:
1. Creating public alarm;
2. Disturbing public order;
3. Endangering the public health;
4. Offending public decency;
5. Obstructing a right of way;
6. Disgusting the senses; or,
•
7. In any way rendering life or the use of property
uncomfortable."
"§ 1572. A public nuisance is one which affects equally
the rights of the whole community or neighborhood,
although the extent of the damage may be unequal.”
The reasons for the change are chiefly: 1. That, while
the definition in the Civil Code properly embraced both
private and public nuisances, it is unnecessary for the
purposes of the Penal Code to include private nuisances
in the definition; and, 2. That the specific prohibition in
other chapters of the Code, of some acts which have
formerly been classed under the general term "public
nuisance," has rendered it practicable to restrict the defi-
nition of that term, in this Code, to some extent.
The following are the leading decisions which support
the several clauses of the definition in the text.
Subd. 1. Rex v. Wigg, Salk., 460; 2 Ld. Raym., 1163;
Rex v. Pierce, 2 Show., 327; Rex v. Wharton, 12 Mod.,
510; Rex v. Smith, 1 Stra., 704; Rex v. Moore, 3 Barn.
& Ad., 184; Rex v. White, 1 Burr., 333; Rex v. Davey,
5 Esp.. 217; Rex v. Lloyd, 4 Id., 200; Rex v. Neil, 2
Carr. & P., 485; Putnam v. Payne, 13 Johns., 312;
Hinckley v. Emerson, 4 Cow., 351; State v. Baldwin, 1
Dev. & B., 195; Commonwealth v. Brown, 13 Metc, 365;
Reg. v. Lester, 3 Jur. (N. S.), 570; Douglass v. State, 4
Wisc., 387.
Subd. 2. State v. Bertheol, 6 Blackf., 474; State v.
Purse, 4 McCord, 472; Crane v. State, 3 Ind., 193.
Subd. 3. Hall's case, Vent., 196; 1 Mod., 76; 2 Keb.,
846; Rex v. Leach, 6 Mod., 145; Id., 155; Rex v. Gros-
venor, 2 Stark., 511; Rex v. Hollis, Id., 536; Rex v.
Webb, 1 Ld. Raym., 737; Rex v. Russell, 6 Barn. & C.,
566; Rex v. Trafford, 1 Barn. & Ad., 874; Rex v. Watts,
2 Esp., 675; Rex v. Tindall, 1 Nev. & P., 719; 6 Ad. &
E., 143; W. W. & D., 316; Rex v. Ward. 4 Ad. & E.,
384; 1 Har. & W., 703; Rex v. Pease, 4 Barn. & Ad.,
{
£60
THE PENAL CODE
30; Rex v. Morris, 1 Barn. & Ad., 441; Reg. v. Botfield,
1 Carr. & M., 151; Rex v. Smith, 4 Esp., 109; Rex v.
Canfield, 6 Esp., 136; Rex v. Sarmon, 1 Burr., 516; Rex
v. Cross, 3 Camp., 224; Rex v. Russel, 6 East., 427; 2
Smith, 424; Rex v. Jones, 3 Camp., 230; Rex v. Carlile,
Carr. & P., 637; Rex v. Gregory, 2 Nev. & M., 478; 5
Barn. & Ad., 555; Reg. v. Scott, 2 Gale & D., 729; 3
Ad. &. E. (N. S.), 543; 3 Railw. Cas., 187; Reg. v. Betts,
22 Eng. L. & Eq., 240; People v. Lawson, 17 Johns.,
276; People v. Cunningham, 1 Den., 524; Renwick v.
Morris, 7 Hill, 575; Harlon v. Humiston, 6 Cow., 189;
Lansing v. Smith, 8 Id., 146; Dygert v. Schenck, 23
Wend., 446; Drake v. Rogers, 3 Hill, 604; People v.
Lambier, 5 Den., 9; Moshier v. Utica & Schenectady R.
R. Co., 8 Barb., 427; Hart v. Mayor, &c., of Albany, 9
Wend., 5.71; Hecker v. N. Y. Balance Dry Dock Co., 13
How. Pr., 549; and see Same v. Same, 24 Barb., 215;
Peckham v. Henderson, 27 Barb., 207; People v. Van-
derbilt, 24 How. Pr., 301; Wetmore v. Atlantic White
Lead Co., 37 Barb., 70; Commonwealth v. Wright,
Thach. Cr. Cas., 211; Commonwealth v. Gowen, 7 Muss.,
378; State v. Spainhour, 2 Dev. & B., 547; Common-
wealth v. Tuckor, 2 Pick., 44; Commonwealth v. Webb,
6 Rand., 726; State v. Godfrey, 3 Fairf., 361; Common-
wealth v. Ruggles, 10 Muss., 391; State v. Mobley, 1
McMullan, 44; State v. Brown, 16 Conn., 54; Elkins v
State, 2 Humph., 543; Simpson v. State, 10 Yerg., 525;
State v. Miskimmons, 2 Carter, 440; Commonwealth v.
Rush, 14 Penn. St., 186; State v. Morris & Essex R. R.
Co., 3 Zabr., 360; Commonwealth v. Bowman, 3 Burr,
202; Commonwealth v. Milliman, 13 Serg. & R., 403;
Commonwealth v. Chapin, 5 Pick., 199; State v. Hunter,
5 Ired., 369; State v. Commissioners, 3 Hill (So. Car.),
149; State v. Yarrell, 12 Ired., 130; State v. Duncan, 1
McCord, 404; State v. Thompson, 2 Strobl., 12; Com-
monwealth v. Elburger, 1 Whart., 469; State v. Atkin-
son, 24 Vt., 448; Newark Plankroad Co. v. Elmer, 1
Strockt., 754; Attorney General v. Hudson River R. R.
Co., Id., 526; Works v. Junction R. R. Co., 5 McLean,
425; State v. Phipps, 4 Ind., 515; State v. Freeport, 43
Me., 193.
Subd. 4. Rex v. White, Burr., 333; Rex v. Smith,
Stra., 703; White v. Cohen, 19 Eng. L. & Eq., 146; Cat-
lin v. Valentine, 9 Paige, 575; Brady v. Weeks, 3 Barb.,
157; Prescott's case, 2 City Hall Rec., 161; Prout's case,
4 Id., 481; Lynch's case, 6 Id., 61; People v. Townsend,
3 Hill, 479: Hackney v. State, 8 Ind., 494; State v
Wetherall, 5 Пarring., 487: 3 Blackst. Comm., 216;
Bell's Sc. Law Dict., tit. Nuisance.
The following are intended to be excluded from the
definition, because they have been decided not to be
OF THE STATE OF NEW YORK.
161
nuisances, upon grounds deemed to be sufficient by the
Commissioners:
Exercising banking privileges without authority. At-
torney General v. Bank of Niagara, Hopk., 354.
An immigrant depot, if not kept in an improper man-
ner. Phoenix v. Commissioners of Emigration, 1 Abbott's
Pr., 466.
A person sick of a contagious disease, if not needlessly
exposed so as to endanger the public. Boom v. City of
Utica, 2 Barb., 104.
Several offenses which in this Code are made the sub-
ject of specific provisions have been held indictable under
the common law definition of nuisance.
See as to throwing gas tar into public streams. Rex v.
Meadley, 6 Carr. & P., 292.
As to obstructing railways. Reg. v. Holroyd, 2 M. &
Rob., 339.
As to keeping gunpowder. Rex v. Taylor, 2 Stra., 1167•
People v. Sands, 1 Johns., 78; Myers v. Malcolm, 6 Hill
292.
As to establishments for gaming and other useless
sports. Tanner v. Trustees of Albion, 5 Hill, 121; Updike
v. Campbell, 4 E. D. Smith, 570; State v. Doon, R. M.
Charlt., 1; State v. Haines, 30 Maine, 65.
As to other disorderly houses. Smith v. Commonwealth,
6 B. Monr., 21; Bloomhuff v. State, 8 Blackf., 205; State
v. Bailey, 1 Fost., 343; Rex v. Williams, 1 Salk., 384;
Hackney v. State, 8 Ind., 494.
As to dangerous driving through public streets. U. S.
v. Hart, Pet. C. C., 390.
As to exposure of the person. Reg. v. Webb, 1 Den. C.
C. R., 338; 13 Jur., 42; 18 Law J. (M. C.), 39.
As to digging up or injuring highways. Reg. v. Shef-
field Gas Consumers' Co., 22 Eng. L. & Eq., 200; State v.
Peckhard, 5 Harring., 500.
As to neglect to keep ferry in repair. State v. Willis,
Busb., 223.
As to profane swearing. State v. Graham, 3 Sneed.,
134.
Consult, also, upon other branches of the criminal law
relative to what are nuisances, the following: Rex v.
Wigg, 1 Ld. Raym., 737; Rex v. Village of Hornsey, 1
Ro., 406; Anon., 12 Mod., 342; Rex v. Record, 2 Show.,
216; Rex y. Dunraven, W. W. & D., 577; Rex v. Cross,
2 Carr. § P., 483; Rex v. Neville, Peake, 93; Rex v.
Watts, Mood. & M., 281; Wetmore v. Tracy, 14 Wend.,
250; Harris v. Thompson, 9 Barb., 350; Plant v. Long
Island R. R. Co., 10 Id., 26; Leigh v. Westervelt, 2 Duer,
618; Williams v. N. Y. Central R. R. Co., 18 Barb., 222;
Lynch's case, 6 City Hall Rec., 61; Dygert v. Schenck,
23 Wend., 446; People v. Cunningham, 1 Den., 424;
Renwick v. Morris, 7 Hill, 575; Peckham v. Henderson,
21
162
THE PENAL CODE
Unequal
damage.
Maintain-
ing a nui-
demeanor.
27 Barb., 207; State v. Commissioners, Riley, 146; Ellis v.
State, 7 Blackf., 534; Works v. Junction Railroad, 5 Mc-
Lean, 425; Douglass v. State, 4 Wisc., 387; Common-
wealth v. Upton, 6 Gray, 473.
S431. An act which affects a considerable number
of persons, in either of the ways specified in the last
section, is not less a nuisance because the extent of
the damage is unequal.
แ
Embodies a part of section 1572 of the Draft Civil
Code; the words a considerable number of persons
being substituted for "the whole community or neigh-
borhood," to avoid uncertainty. It may be doubtful in
some cases, whether the persons affected by an obstruc-
tion in a navigable stream, for instance, form what can
be called a neighborhood.
S 432. Every person who maintains or commits
sance a mis- any public nuisance, the punishment for which is not
otherwise prescribed, or who willfully omits to per-
form any legal duty relating to the removal of a
public nuisance, is guilty of a misdemeanor.
Keeping
gunpowder
S 433. Every person who makes or keeps gunpow-
unlawfully. der or saltpeter within any city or village, and every
person who carries gunpowder through the streets
thereof, in any quantity or manner such as is prohi-
bited by law, or by any ordinance of such city or
village, is guilty of a misdemeanor.
Throwing
gas tar into
public
waters.
See Laws of 1846, ch. 291, § 19. It is not intended to
confine this provision to cases in which an explosion
occurs. Keeping powder in violation of law should be
punishable, irrespective of any mischief in the particu-
lar case.
S 434. Every person who throws or deposits any
gas tar, or refuse of any gas house or factory, or any
offal, refuse, or other noxious or poisonous ingredients,
into any public waters, river or stream, or into any
sewer or stream running or emptying into any such
public waters, river or stream, is guilty of a misde-
meanor.
Founded upon Laws of 1845, ch. 201. That act applies
only to the counties of New York, Kings and Queens.
!
OF THE STATE OF NEW YORK.
163
In view of the extension of gas manufactories to almost
all towns of considerable size throughout the state, the
Commissioners think the provision should be made
general.
of quaran-
435. Every master of a vessel subject to quaran- Violations
tine or visitation by the health officer, arriving in tine laws
the port of New York, who refuses or omits, either:
1. To proceed with and anchor his vessel at the
place assigned for quarantine, at the time of his
arrival; or,
2. To submit his vessel, cargo and passengers, to
the examination of the health officer, and to furnish
all necessary information to enable that officer to
determine to what length of quarantine and other
regulations they ought respectively to be subject;
or,
3. To remain with his vessel at quarantine during
the period assigned for her quarantine, and while at
quarantine to comply with the directions and regula-
tions prescribed by law, and with such as any of the
officers of health, by virtue of the authority given
to them by law, shall prescribe in relation to his
vessel, his cargo, himself, his passengers or crew, is
punishable by imprisonment in a county jail not
exceeding one year, or by a fine not exceeding two
thousand dollars, or both.
Laws of 1856, ch. 147, § 28.
by master
of vessel.
S 436. Every master of a vessel hailed by a pilot Giving
who, either:
false infor-
mation re-
lative to
vessel, or
permitting
persons to
land before
visit of
or
he
health offi-
cers.
be
1. Gives false information to such pilot, relative to
the condition of his vessel, crew or passengers,
the health of the place or places from whence
came, or refuses to give such information as shall
lawfully required; or,
2. Lands any person from his vessel, or permits
any person, except a pilot, to come on board of his
vessel, or unlades or tranships any portion of his
cargo before his vessel has been visited and examined
by the health officers; or,
164
THE PENAL CODE
Landing
from vessel
of health
officers.
3. Approaches with his vessel nearer the city of
New York than the place of quarantine to which he
may be directed, is punishable by imprisonment in a
county jail not exceeding one year, or by a fine not
exceeding two thousand dollars, or both.
Laws of 1856, ch. 147, § 29.
S 437. Every person who, being on board any ves
before visit sel at the time of her arrival at the port of New
York, lands from such vessel, or unlades, or tran-
ships, or assists in unlading or transhipping any
portion of her cargo, before such vessel has been
visited and examined by the health officers, is pun-
ishable by imprisonment in a county jail not exceed-
ing one year, or by a fine not exceeding two thousand
dollars, or both.
Going on
board ves-
sel at quar-
grounds, or
antine
entering
grounds
without
leave.
See Laws of 1856, ch. 147, § 29.
S 438. Every person who goes on board of or has
any communication, intercourse or dealing with any
vessel at quarantine, or with any of the crew or pas-
quarantine sengers of such vessel, without the permission of the
health officer, and every person who, without such
authority enters the quarantine grounds or anchorage,
is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not exceeding two
thousand dollars, or both; and in addition thereto he
may be detained at quarantine so long as the health
officers shall direct, not exceeding twenty days. And
in case such person shall be taken sick of any infec-
tious, contagious or pestilential disease, during such
twenty days, he may be detained for such further time
at the marine hospital, as the health officer shall direct.
Laws of 1856, ch. 147, § 32.
Violating
quarantine
S439. Every person who, having been lawfully
regulations ordered by any health officer to be detained in quar-
antine, and not having been discharged, leaves the
quarantine grounds or anchorage, or willfully violates
any quarantine law or regulation, is guilty of a mis-
demeanor.
See Laws of 1856, ch. 147, § 13.
OF THE STATE OF NEW YORK.
165
ing health
S 440. Every person who willfully opposes or ob- Obstruct-
structs any health officer or physician charged with, officer in
the enforcement of the health laws, in performing ance of his
any legal duty, is guilty of misdemeanor.
See Laws of 1856, ch. 147, § 31.
S441. Every person who willfully violates any pro-
vision of the health laws, the punishment for violating
which is not otherwise prescribed by those laws, or
by this Code; and every person who willfully violates
or refuses or omits to comply with any lawful order,
direction, prohibition or regulation prescribed by any
board of health or health officer, or any regulation law-
fully made or established by any public officer under
authority of the health laws, is punishable by impri-
sonment in a county jail not exceeding one year, or by
a fine not exceeding two thousand dollars, or both.
See Laws of 1856, ch. 147, §§ 30, 31, 33; Ibid., §
28, subd. 3.
perform-
duty.
Wiliful vio-
lation of
health laws.
piloting.
S 442. Every person not holding a license as pilot Unlicensed
under Article V of Chap. I of Title III of the Politi-
cal Code, or under the laws of the state of New
Jersey, who pilots, or offers to pilot any vessel to or
from the port of New York, by the way of Sandy
Hook, except such as are exempt; and every person
not being a Hellgate pilot, or one of the crew of the
vessel who pilots or offers to pilot any vessel through
Hellgate; and every master or person in command of
any steam tug or tow boat who tows any vessel
through Hellgate without having a licensed pilot on
board, is guilty of misdemeanor.
See Rep. Pol. Code, §§ 329, 345.
steamers
$ 443. The last section does not apply to vessels Coasting
propelled wholly or in part by steam, owned or excepted.
belonging to citizens of the United States, and
licensed and engaged in the coasting trade.
See Rep. Pol. Code, § 329.
S444. Every person who not being a port-warden, Acting as
assumes or undertakes to act as such, or undertakes the authority.
without
166
THE PENAL CODE
Apothecary
omitting to
or labeling
them
wrongly,
&c.
performance of any of the duties prescribed in Article
VII of Chap. I of Title III of the Political Code, as per-
taining to the office of port-warden; and every person
who knowingly employs any other than the wardens
for the performance of such duties; and every person
who issues any certificate of a survey on vessels, mate-
rials or goods damaged, with the intent to avoid the
provisions of that article, is guilty of a misdemeanor.
Rep. Pol. Code, § 355.
S445. Every apothecary, or druggist, and every
label drugs, person employed as clerk or salesman by any apothe-
cary or druggist, or otherwise carrying on business
as a dealer in drugs or medicines, who, in putting
up any drugs or medicines, or making up any pre-
scription, or filling any order for drugs or medicines,
willfully, negligently or ignorantly omits to label the
same, or puts any untrue label, stamp or other desig-
nation of contents upon any box, bottle or other
package containing any drugs or medicines, or sub-
stitutes a different article for any article prescribed or
ordered, or puts up a greater or less quantity of any
article than that prescribed or ordered, or otherwise
deviates from the terms of the prescription or order
which he undertakes to follow, in consequence of
which human life or health is endangered, is guilty
of misdemeanor.
The frequent occurrence of accidents, involving, often,
even the loss of human life, through mistakes in the put-
ting up of prescriptions, render necessary some legislation
to enforce care and caution on the part of dealers in
drugs. The recent case of Thomas ". Winchester, 2
Seld., 397, illustrates the danger arising in a different class
of cases, also embraced by the section in the text; viz.:
cases in which a manufacturer or dealer in drugs sends
them into the market under an untrue label; in conse-
quence of which, retail dealers are innocently led to sup-
ply dangerous articles without intending it. In that case
it appeared that defendants, who were manufacturing
druggists, sold to a dealer a jar labeled, "extract of dan-
delion; " but which really contained extract of belladonna.
The dealer, relying on the label, sold the jar to a retailer;
and the latter, in turn, used a part of the contents of the
ļ
OF THE STATE OF NEW YORK.
167
jar, supposing them to be extract of dandelion, in putting
up a prescription in which that article was required. A
dangerous illness was the result to the person taking the
prescription. The court of appeals, in the case cited,
held the manufacturers liable in damages to the injured
person, notwithstanding the article had passed through
intermediate sales, in reaching such person. This liabil-
ity is founded upon the duty which the law imposes upon
the dealer, to avoid acts dangerous to other persons; and
not upon any contract, or privity between him and the
consumer. Obvious considerations make it proper that
this duty should be enforced by criminal penalty as by a
remedy in damages.
S 446. Every apothecary or druggist, and every
person employed as clerk or salesman by any apothe-
cary or druggist, or otherwise carrying on business as
a dealer in drugs or medicines, who sells or gives any
poison or poisonous substance, without first record-
ing in a book to be kept for that purpose, the name
and residence of the person receiving such poison,
together with the kind and quantity of such poison
received and the name and residence of some person
known to such dealer, as a witness to the transaction,
excepting upon the written order or prescription of
some practising physician whose name is attached to
such order, is guilty of a misdemeanor.
Founded on Laws of 1860, ch. 442, § 1, as amended.
Laws of 1862, ch. 273, § 1.
Restriction to dealers. The Commissioners have re-
stricted the provision to sales or gifts made by persons
dealing in drugs. The statute of 1860, is stringent
enough to prohibit any individual from selling or giving
an article of a poisonous character to another without
opening a book and making a record of what is perhaps
his only transaction of the kind for years. Such record
cannot be expected to be kept, and serves no important
purpose if kept, excepting when maintained in connection
with an establishment of somewhat permanent and pub-
lic character, carrying on a business of dealing in articles.
of the kind to be specified in the record.
Contents of the record. The act of 1860, as amended in
1862, requires the seller to record in a book "the name
of the person receiving said poison, and his or her resi-
dence together with the name of some person as witness
to such sale. The Commissioners have substitued for
this language the words "the name and residence of the
Apothecary
selling poi-
the sale.
son without
recording
168
THE PENAL CODE
:
Refusing to
exhibit
record.
Selling poi-
son without
label.
person receiving such poison, together with the kind and
quantity of such poison received, and the name and residence
of some person known to such dealer, as a witness to the
transaction." Unless the kind and quantity of the poison
sold are inserted, the record is a mere list of persons who
have bought poisons, and lacks the very element neces-
sary to render it of service in any subsequent legal inves-
tigation. If the purchaser may bring his own witness
with him, fictitious names and residences of witnesses
will be imposed upon the dealer whenever the purchaser
wishes to evade the law. And the word "transaction "is
more appropriate than "sale" because by the antecedent
provisions gifts are to be recorded equally with sales.
The punishment. For the sake of greater harmony in
the system of penalties, this offense has been declared a
misdemeanor, simply, instead of retaining the special
penalty of fifty dollars affixed by the present statutes.
S 447. Every person whose duty it is by the last
section to keep any book for recording the sale or
gift of poisons, and who willfully refuses to permit
any person to inspect said book upon reasonable
demand made during ordinary business hours, is pun-
ishable by a fine not exceeding fifty dollars.
See Laws of 1860, ch. 442, § 1, as amended by
Laws of 1862, ch. 273, § 1.
S 448. Every person who sells, gives or disposes of
any poison or poisonous substance, except upon the
order or prescription of a regularly authorized prac-
tising physician, without attaching to the vial, box or
parcel containing such poisonous substance, a label
with the name and residence of such person, the word
"poison" and the name of such poison all written or
printed thereon in plain and legible characters,
guilty of a misdemeanor.
is
Laws of 1860, ch. 442, § 2. The reasons which influ-
enced the commissioners to recommend that the provision
requiring a record of transactions in poisons be restricted
to the case of persons habitually dealing in kindred
articles, (see note to section 446 supra) do not apply in
all their force to the provision requiring the package to
be labeled. But they do forbid preserving the exact pro-
vision of the present statute, which requires that the
word "poison" be printed in red ink; while the particu-
lar name of the poison may be printed or written at the
OF THE STATE OF NEW YORK.
169
dealer's option. Unless the furnishing of such articles as
laudanum, corrosive sublimate, and the stronger acids by
one neighbor to another, upon a casual necessity for their
use is to be absolutely prevented, the requirement of a
printed label will be inapplicable in a variety of cases
arising under the statute. The Commissioners have
thought it necessary, therefore, either to restrict this sec-
tion as they have that relating to the record book to the
case of dealers, or else to modify it by recognizing a label
wholly in manuscript as a compliance with the law. This
conforms to our former statute. 2 Rev. Stat., 694, § 23.
What are poisons. As the section enumerating the
articles deemed poisonous, within the meaning of the act
of 1860 (Laws of 1860, ch. 442, § 3), was deliberately
repealed in 1862 (Laws of 1862, ch. 273, § 2), without
any recognition of the propriety of a statutory enu-
meration, the Commissioners have not restored it.
Restriction as to locality. In view of the more guarded
manner in which the provisions of sections 446 and 448
are expressed, they are deemed proper to be generally en-
forced throughout the state; therefore the provision of
Laws of 1860, ch. 442, § 5, restricting the application of
that act to incorporated cities and villages having a pop-
ulation of one thousand inhabitants and upwards, is.
omitted.
to mark
name
upon pack
age of hay.
S 449. Every person, who, in putting up or pressing Omitting
any bundle or bale of hay for market, omits to mark
or brand, in a legible manner, the initials of his name
on some wood or metal securely attached to such
bundle or bale of hay, is punishable by a fine of
twenty-five dollars for each offense.
Laws of 1860, 155, §§ 1, 4.
S 450. Every person, who, in putting up in any
bag, bale, box, barrel or other package, any hops,
cotton, hay or other goods usually sold in bags, bales,
boxes, barrels or packages, by weight, puts in or con-
ceals therein any thing whatever, for the purpose of
increasing the weight of such bag, bale, box, barrel
or package, is punishable by a fine of twenty-five
dollars for each offense.
See Laws of 1860, ch. 155, §§ 2, 4.
Putting ex-
substances
of goods
traneous
in packages
usually sold
by weight,
with intent
to increase
weight.
Adulterat-
§ 451. Every person who adulterates or dilutes any Altera
article of food, drink, drug, medicine, strong, spiritu- quors, &c.
drugs, li-
22
170
THE PENAL CODE
Disposing
of tainted
food, &c.
Making or
keeping
ous or malt liquor, or wine, or any article useful in
compounding either of them, whether one useful for
mankind or for animals, with a fraudulent intent to
offer the same, or cause or permit it to be offered for sale
as unadulterated or undiluted; and every person who
fraudulently sells, or keeps or offers for sale the same
as unadulterated or undiluted, knowing it to have been
adulterated or diluted, is guilty of a misdemeanor.
S 452. Every person who knowingly sells, or keeps,
or offers for sale or otherwise disposes of any article
of food, drink, drug or medicine knowing that the
same has become tainted, decayed, spoiled or other-
wise unwholesome or unfit to be eaten or drank, with
intent to permit the same to be eaten or drank by
any person or animal, is guilty of a misdemeanor.
$ 453. Every person who manufactures or causes
slung shot. to be manufactured, or sells, or offers or keeps for
sale, or gives or disposes of any instrument or wea-
pon of the kind usually known as slung shot, or of
any similar kind, is guilty of a misdemeanor.
Carrying
upon the
person, or
using or
See Laws of 1849, ch. 278, § 1.
S 454. Every person who carries upon his person,
whether concealed or not, or uses or attempts to use
attempting against another, any instrument or weapon of the
kind usually known as slung shot or of any similar
kind, is guilty of felony.
to use slung
shot.
Carrying
weapons.
See Laws of 1849, ch. 278, § 2. So much of this sec-
tion as makes it felony to "be found in possession of" a
slung shot is omitted because many cases of possession
are covered by section 1 of that act; embodied in section
453, supra.
S 455. Every person who carries concealed about
concealed his person any description of fire-arms, being loaded
or partly loaded, or any sharp or dangerous weapon
such as is usually employed in attack or defense of
the person, is guilty of a misdemeanor.
Such a provision as the above does not infringe the
provision of the United States constitution (Amendments
OF THE STATE OF NEW YORK.
171
art. 2,) which declares that the right of the people to
keep and bear arms, shall not be infringed; inasmuch as
it is' a measure of police, prohibiting only a particular
mode of carrying arms, which is found dangerous to the
peace of society. State v. Zumel, 13 La. Ann., 399.
in respect
S 456. Every person who negligently sets fire to Negligence
his own woods, or negligently suffers any fire upon to fires.
his own land to extend beyond the limits thereof, is
guilty of a misdemeanor.
See Rep. Pol. Code, § 763.
assist in
ing fire in
the woods.
S 457. Every person who, having been lawfully Refusing to
ordered, as provided by section 764 of the Political extinguish-
Code, to repair to the place of a fire in the woods and
assist in extinguishing it, omits without lawful excuse
to comply with such order, is guilty of a misde-
meanor.
attempts to
fires.
S 458. Every person who, at any burning of a Obstructing
building is guilty of any disobedience to lawful extinguish
orders of any public officer or fireman, or of any
resistance to or interference with the lawful efforts
of any fireman or company of firemen, to extinguish
the same, or of any disorderly conduct calculated to
prevent the same from being extinguished, or who
forbids, prevents or dissuades others from assisting
to extinguish the same, is guilty of a misdemeanor.
ing ferry
authority
of law.
S 459. Every person who maintains any ferry for Maintain-
profit or hire upon any waters within this state, with- without
out authority of law, is punishable by a fine not ex-
ceeding twenty-five dollars for each time of crossing
or running such ferry. Where such ferry is upon
waters dividing two counties, the offender may be
prosecuted in either.
Suggested as a substitute for Rep. Pol. Code, § 661.
condition
of recog
S 460. Every person who, having entered into a Violating
recognizance, as provided by section 659 of the Poli-
tical Code, to keep and attend a ferry, violates the
condition of such recognizance, is guilty of a misde-
meanor.
See Rep. Pol. Code, § 660.
zance to
keep a ferry
172
THE PENAL CODE
Engineer
omitting to
S 461. Every person in charge, as engineer, of a
ring bell or locomotive engine, who omits to cause a bell to ring
sound whis-
tle when
locomotive
crosses
highway.
Intoxica-
tion of en-
gineers,
conductors
or a steam whistle to sound at the distance of at least
eighty rods from the place where the track crosses,
on the same level, any traveled public way, is punish-
able by a fine not exceeding fifty dollars, or by im-
prisonment in the county jail not exceeding sixty days.
See Rep. Pol. Code, § 557.
S 462. Every person who, while in charge, as engi-
neer, of a locomotive engine or while acting as con-
and drivers ductor or driver upon any railroad train or car, whether
propelled by steam or drawn by horses, is intoxicated,
is guilty of a misdemeanor.
upon
roads.
Violations
of duty by
officers,
agents or
railroad
Substituted for Rep. Pol. Code, § 588.
S463. Every engineer, conductor, brakeman, switch-
tender or other officer, agent or servant of any rail-
servants of road company, who is guilty of any willful violation
companies. or omission of his duty as such officer, agent or ser-
vant by which human life or safety is endangered, the
punishment for which is not otherwise prescribed, is
guilty of a misdemeanor.
Duty of
guarding
S464. All persons and incorporated companies
ice cuttings cutting ice in or upon any waters within the bound-
aries of this state, for the purpose of removing such
ice for sale, shall surround the cuttings and openings
made, with fences of bushes or other guards sufficient
to warn all persons of such cuttings and openings.
See Laws of 1860, ch. 20, § 1.
How long
such guards
maintained.
S 465. Such fences or guards must be erected at or
must be before the time of commencing such cuttings or
openings, and must be maintained until ice has again
formed in such openings to the thickness of at least
six inches.
Violation of
duty to
maintain
guards
around ice
cuttings a
misde-
meanor.
Ibid.
S 466. Every person who violates the provisions of
the last two sections, is guilty of a misdemeanor.
Ibid., § 2.
The act of 1860, ch. 20, §, on which the three sec-
OF THE STATE OF NEW YORK.
173
tions in the text are founded, applies only to ice cuttings
in the waters of the Hudson river and the tide waters of
the Rondout and Catskill creeks; and it requires the fence
to be at least four feet high. The Commissioners deem
the principle upon which the act is founded, one which
should be extended to other waters than those specified
in the act. In many localities, however, a less expensive
fencing than the act referred to requires, would give
ample protection to the public. The Commissioners have,
therefore, defined the duty in general terms, leaving the
sufficiency of guards erected in any particular locality to
be judged when occasion arises.
or
S 467. Every person who uses any net or weir
sets any pole or other fixture in any part of the
Hudson river, except as permitted by section 266 of
the Political Code, is guilty of a misdemeanor.
Rep. Pol. Code, § 266.
S 468. Every person who willfully exposes himself
or another, affected with any contagious or infectious
disease, in any public place or thoroughfare, except
in his necessary removal in a manner not dangerous
to the public health, is guilty of a misdemeanor.
S 469. Every person who willfully makes or pub-
lishes any false statement, spreads any false rumor,
or employs any other false or fraudulent means or
device, with intent to affect the market price of any
kind of property, is guilty of a misdemeanor.
Using net
lawfully
river.
or weir un
in Hudson
Exposing
person
infected
with a con-
ease in a
place
tagious dis-
public
Frants
practised to
affect the
price.
market
false
in news-
S 470. Every editor or proprietor of any newspaper Publishing
who willfully publishes in such newspaper as true, statements
any statement which he has not good reason to be- papers.
lieve to be true, with intent to increase thereby the
sales of copies of such paper, is guilty of a misde-
meanor.
ping.
S471. Every person guilty of secretly loitering Eavesdrop
about any building, with intent to overhear discourse
therein, and to repeat or publish the same to vex or
annoy or injure others, is guilty of a misdemeanor.
The common law definition of this offense, which is
known as "eavesdropping," seems to have confined it to
174
THE PENAL CODE
Racing
upon high-
ways.
loitering about dwelling houses (2 Bish. Cr. L., § 274; 1
Russ. on Cr., 327; 4 Blackst. Comm., 168). The reasons
which render the act obnoxious to punishment when
committed with reference to dwellings, apply, however,
with nearly equal force, to buildings occupied for other
purposes.
$472. Every person driving any conveyance drawn
by horses upon any public road or way, who causes
or suffers his horses to run, with intent to pass another
conveyance or to prevent such other from passing his
own, is guilty of a misdemeanor.
Suggested as a substitute for Rep. Pol. Code, § 669.
TITLE XIII.
OF CRIMES AGAINST THE PUBLIC PEACE.
SECTION 473. Disturbing lawful meetings.
474. "Riot" defined.
475. Punishment of riot.
476. "Rout" defined.
477. Unlawful assembly.
478. Assembly of persons disguised.
479. Punishment of rout and unlawful assembly.
480. Allowing masquerades to be held in places of public resort.
481. Remaining present at place of riot, &c., after warning to
disperse.
482. Remaining present at place of a meeting, originally lawful,
after it has adopted an unlawful purpose.
483. Refusing to obey a lawful command to assist in arresting
rioter.
484. Combinations to resist execution of process.
485. Prize fights.
486. Challenges to engage in prize fights.
487. What is a challenge.
488. Leaving the state to engage in prize fights.
489. Place of trial.
490. Special duty of peace officers with respect to prize fights.
491. Neglect of duty by peace officers, a misdemeanor.
492. Forcible entry and detainer.
493. Returning to take possession of lands after being removed
by legal process.
494. Unlawful intrusions upon lands of another.
495. Discharging fire-arms in public places.
496. Witness' privilege.
OF THE STATE OF NEW YORK.
175
lawful
S 473. Every person who, without authority of law, Disturbing
willfully disturbs or breaks up any assembly or meet- meetings.
ing, not unlawful in its character, other than such
as are mentioned in sections 55, 79, and 360 of this
Code, is guilty of a misdemeanor.
The assemblies specified in the sections referred to are
religious meetings, meetings of electors held for dis-
cussion of public questions, and funerals.
defined.
S474. Any use of force or violence, disturbing the "Riot"
public peace, or any threat to use such force or violence
if accompanied by immediate power of execution, by
three or more persons acting together and without
authority of law, is riot.
Consult State v. Conolly, 3 Rich., 337; State v. Snow,
6 Shep., 346; Dougherty v. People, 4 Scamm., 180; Rex
v. Langford, 1 Car. & M., 604; State v. Cole, 2 McCord,
117; State v. Brooks, 1 Hill (So. Car.), 361; State v.
Brazil, 1 Rice, 258; 4 Blackst. Comm., 146; 4 Burn's Just.,
tit. Riot; Bouv. Luw Dict., Id.; 1 Hawk. P. C., ch. 65,
§ 1; Whart. Cr. L., 722; Chitty's Cr. L., 274.
S 475. Every person guilty of participating in any Punish-
riot is punishable as follows:
1. If any murder, maiming, robbery, rape or arson,
was committed in the course of such riot, such person
is punishable in the same manner as a principal in
such crime.
2. If the purpose of the riotous assembly was to
resist the execution of any statute of this state or of
the United States, or to obstruct any public officer of
this state or of the United States in the performance
of any legal duty, or in serving or executing any
legal process, such person is punishable by imprison-
ment in a state prison not exceeding ten years and
not less than two.
3. If such person carried, at the time of such riot,
any species of fire-arms, or other deadly or danger-
ous weapon, or was disguised, he is punishable by
imprisonment in a state prison not exceeding ten
years and not less than two.
ment of
riot.
176
THE PENAL CODE
Rout"
defined.
Unlawful
assembly.
Assembly
of persons
4. If such person directed, advised, encouraged, or
solicited other persons, who participated in the riot,
to acts of force or violence, he is punishable by im-
prisonment in a state prison for not less than three
years.
5. In all other cases such person is punishable as
for a misdemeanor.
S476. Whenever three or more persons, acting
together, make any attempt or do any act towards
the commission of an act which would be riot if
actually committed, such assembly is a rout.
S 477. Whenever three or more persons assemble
with intent or with means and preparations to do an
unlawful act which would be riot if actually com-
mitted, but do no act towards the commission thereof;
or whenever such persons assemble without authority
of law, and in such a manner as is adapted to disturb
the public peace, or excite public alarm, such assem-
bly is an unlawful assembly.
Consult upon the first branch of this section 4 Blackst.
Comm., 147; Rex v. Birt, 5 Carr. & P., 154; Rex v.
Heass, 2 Salk., 594.
Upon the second, 1 Hawk. P. C., ch. 65, § 9; 1 Russ.
Cr., 272; Whart. Cr. L., 722; Rex v. Hunt, 1 Russ. C.
& M., 254; 3 Cox Cr. Cas., 215; Reg. v. Vincent, 9
Carr. & P., 91; Reg. v. Neale, 9 Carr. & P., 431; Reg.
v. Soley, 11 Mod., 116; Gagarty v. Queen, 3 Cox Cr.
Cas., 306.
S 478. Every assembly of three or more persons
disguised. having their faces painted, discolored, colored or
concealed, or being otherwise disguised in a manner
adapted to prevent them from being identified, is an
unlawful assembly.
Punish-
ment of
rout and
unlawful
assembly
Allowing
masquer-
Laws of 1845, ch. 3, § 6.
$479. Every person who participates in any rout
or unlawful assembly, is guilty of a misdemeanor.
S 480. Every person being a proprietor, manager
ades to be or keeper of any theater, circus, public garden, pub-
1
OF THE STATE OF NEW YORK.
177
held in
places of
resort.
lic hall or premises, or other place of public meeting,
resort or amusement whatever, for admission to public
which any price or payment is demanded, who per-
mits therein any masquerade, or masked ball, or any
assemblage of persons masked, is guilty of a misde-
meanor, punishable by imprisonment in a state prison
not exceeding two years, or in a county jail not ex-
ceeding one year, or by a fine not exceeding five
thousand dollars and not less than two thousand five
hundred dollars, or by both such fine and imprison-
ment.
Laws of 1829, ch. 270; as amended Laws of 1858,
ch. 359.
present at
place of
after warn-
riot, &c.,
ing to dis-
S 481. Every person remaining present at the place Remaining
of any riot, rout or unlawful assembly, after the same
has been lawfully warned to disperse, except public
officers and persons assisting them in attempting to
disperse the same, is guilty of a misdemeanor.
S 482. Where three or more persons assemble for a
lawful purpose, and afterwards proceed to commit an
act that would amount to riot if it had been the
original purpose of the meeting, every person who
does not retire when the change of purpose is made
known, except public officers and persons assisting
them in attempting to disperse the same, is guilty
of a misdemeanor.
S 483. Every person present at any riot, and law-
fully commanded to aid the magistrates or officers in
arresting any rioter, who neglects or refuses to obey
such command, is deemed one of the rioters, and
punishable accordingly.
See Rep. Code Cr. Pro., § 90.
S484. Every person who resists, or enters into a
combination with any other person to resist the
execution of any legal process, under circumstances
not amounting to a riot, is punishable by imprison-
ment in a county jail not exceeding one year, or by
a fine not exceeding one thousand dollars, or both.
Laws of 1845, ch. 69, § 17.
perse.
Remaining
place of a
originally
present at
meeting,
lawful, after
it has adop-
ted an un-
awful pur
pose.
obey a law-
Refusing to
ful com
assist in
rioter.
mand to
arresting
Combina-
sist execu
tions to re-
tion of pro-
cess.
23
178
THE PENAL CODE
Prize fights.
Challenges
S485. Every person who engages in, instigates,
encourages or promotes, any ring or prize fight, or
any other premeditated fight or contention, whether
as principal, aid, second, umpire, surgeon, or other-
wise, although no death or personal injury ensues, is
guilty of a misdemeanor.
S 486. Every person who challenges another to
to engage in
prize fights. engage in any such fight as is specified in the last
section; every person who accepts any such chal-
lenge; every person who knowingly forwards, carries
or delivers any such challenge; and every person
who bets, stakes or wagers any money or property
upon the result of any such fight, or who under-
takes to hold any money or property so betted, staked
or wagered, to be delivered to or for the benefit of the
winner thereof, is guilty of a misdemeanor.
What is a
challenge.
Leaving the
state to
engage in
prize fights.
Place of
trial.
S 487. Any words spoken or written, or any signs
uttered or made to any person, expressing or imply-
ing, or intended to express or imply a desire, request,
invitation or demand to engage in any fight, such as
is mentioned in section 485, are deemed a challenge
within the meaning of the last section.
Corresponds with § 298 of this Code.
S 488. Every person who leaves this state with
intent to elude any of the provisions of the last
three sections, and to commit any act out of this
state, such as is prohibited by them, and who does
any act which would be punishable under these pro-
visions if committed within this state, is punishable
in the same manner as he would have been in case
such act had been committed within this state.
Corresponds with § 301 of this Code.
S 489. Such person may be indicted and tried in
any county within this state.
Corresponds with § 302 of this Code.
↑
OF THE STATE OF NEW YORK.
179
duty of
peace off-
cers with
respect to
prize fights.
$490. It is the duty of all sheriffs, constables, Special
policemen, and watchmen, who have reasonable
grounds to believe that any offense specified in
section 485 is about to be committed within their
jurisdiction, to make complaint under the provisions
of this act to some magistrate within their jurisdic-
tion.
Laws of 1859, ch. 37, § 4.
S 491. Every sheriff, constable, policeman or watch-
man, who willfully neglects the duty prescribed by
the last section, is guilty of a misdemeanor; and in
addition to the punishment prescribed therefor, he
forfeits his office.
Laws of 1859, ch. 37, § 4.
Neglect of
peace off-
demeanor.
duty by
cers a mis-
entry and
S 492. Every person guilty of using, or of procuring, Forcible
encouraging or assisting another to use, any force or detainer.
violence in entering upon or detaining any lands or
other possessions of another, except in the cases and
manner allowed by law, is guilty of misdemeanor.
Returning
session of
being
to take pos-
lands after
moved by
S493. Every person who has been removed from
any lands by process of law, or who has removed
from any lands pursuant to the lawful adjudication
or direction of any court, tribunal or officer, and cess.
who afterwards, without authority of law, returns to
settle or reside upon such lands, is guilty of a misde-
meanor.
Founded upon 1 Rev. Stat., 206, § 54, but made more
general.
intrusions
upon lands
of another.
S494. Every person who intrudes or squats upon Unlawful
any lot or piece of land within the bounds of any
incorporated city or village, without license or autho-
rity from the owner thereof, or who erects or occu-
pies thereon any hut, hovel, shanty or other structure
whatever without such license or authority; and
every person who places, erects, or occupies within
the bounds of any street or avenue of such city or
village, any hut, hovel, shanty, or other structure
whatever, is guilty of a misdemeanor.
See Laws of 1857, ch. 396, § 1.
$180
THE PENAL CODE
Discharg-
ing fire-
arms in
public
places.
Witness'
privilege.
S 495. Every person who willfully discharges any
species of fire-arms, air-gun or other weapon, or
throws any other missile in any public place, or in
any place where there is any person to be endangered
thereby, although no injury to any person shall ensue,
is guilty of a misdemeanor.
S 496. No person shall be excused from giving any
evidence upon any investigation or prosecution for
any of the offenses specified in this chapter, upon the
ground that such testimony or evidence might tend
to convict him of a crime. But such answer or evi-
dence shall not be received against him upon any
criminal proceeding or prosecution.
See Laws of 1860, ch. 141. That act applies only to
prosecutions for prize fighting; but the reasons which
render it proper in connection with that offense apply
equally in the case of other crimes committed by num-
bers acting in concert, such as are specified in this chap-
ter.
!
TITLE XIV.
OF CRIMES AGAINST THE REVENUE AND PROPERTY
OF THE STATE.
SECTION 497. Embezzlements and falsification of accounts by public offi-
cers.
498. Other violations of law.
499. Officer authorized to make any sale, lease or contract, be-
coming interested under it.
500. County clerks omitting to publish statement required by
law.
501. Obstructing officer in collecting revenue.
502. Selling goods by auction without filing the bond required by
the Political Code.
503. Auctioneer accepting appointment as auctioneer in another
state, or selling in another state.
504. Auctioneer having two places of business.
505. Auctioneer selling goods at other than his regular place of
business.
506. Punishment for violating last two sections.
507. Selling goods without due advertisement.
508. What sales must be made by day.
1
OF THE STATE OF NEW YORK.
181
SECTION 509. Auctioneer omitting to render account.
510. Auctioneer committing fraud or attempting to evade the
provisions of the Political Code.
511. Delivering false bill of lading to canal collector.
512. Weighmaster making false entry of weight of canal boat.
513. Canal officer concealing frauds upon the revenue.
514. Willful injuries to the canals.
515. Drawing off water from canals.
516. Canal officer accepting bribe to allow water to be drawn
off from canals.
517. Fraudulent appropriation of lost treasure, or waived pro-
property
518. Injuries to the salt works.
519. Seizing military stores belonging to the state.
520. Making false statement in reference to taxes.
ments and
falsification
of accounts
fasts
by public
officers.
S497. Every public officer, and every deputy, or Embezzle-
clerk of any such officer, and every other person
receiving any moneys on behalf of, or for account of
the people of this state, or of any department of the
government of this state, or of any bureau or fund
created by law, and in which the people of this state,
are directly or indirectly interested, who either:
1. Appropriates to his own use, or to the use of
any person not entitled thereto, without authority
of law, any money received by him as such officer,
clerk or deputy, or otherwise, on behalf of the peo-
ple of this state or in which they are interested; or,
2. Knowingly keeps any false account or makes
any false entry or erasure in any account of or relat-
ing to any moneys so received by him, on behalf of
the people of this state, or in which they are inte-
rested; or,
3. Fraudulently alters, falsifies, conceals, destroys
or obliterates any such account; or,
4. Willfully omits or refuses to pay over to the peo-
ple of this state or their officer or agent authorized
by law to receive the same, any money received by
him under any duty imposed by law so to pay over the
same,
Is guilty of felony.
182
THE PENAL CODE
Other viola-
tions of law.
Officer
authorized
to make
any sale,
lease or con-
coming in
tract, be-
terested
under it.
County
clerks omit-
lish state-
ment re-
$498. Every officer or other person mentioned in
the last section who willfully disobeys any provisions
of law regulating his official conduct, in cases other
than those specified in that section, is guilty of a
misdemeanor.
S499. Every public officer, being authorized to sell
or lease any property, or make any contract in his
official capacity, who voluntarily becomes interested
individually in such sale, lease or contract, directly
or indirectly, is guilty of a misdemeanor.
See Laws of 1860, ch. 488, § 19; Laws of 1861,
ch. 340, § 18; Laws of 1862, ch. 285, § 2; also
Howell v. Barker, 4 Johns. Ch., 118.
S 500. Any county clerk who willfully omits to pub-
ting to publish the annual statement required by section 905 of
the Political Code, within the time therein prescribed,
is guilty of a misdemeanor.
quired by
law.
Obstructing
officer in
collecting
revenue.
Selling
goods by
auction
without
required by
the Politi-
cal Code.
Rep. Pol. Code, § 906.
S 501. Every person who willfully obstructs or hin-
ders any public officer from collecting any revenue,
taxes or other sums of money in which, or in any part
of which the people of this state are directly or indi-
rectly interested, and which such officer is by law
empowered to collect, is guilty of a misdemeanor.
$ 502. Every person who acts as auctioneer in sel-
ling any goods liable to auction duties, or in selling
filing bond in the cities of New York, Brooklyn, Albany, Troy
or Buffalo, any personal property whatsoever, except
such as is sold under authority of the United States,
without having filed the bond required by the provi-
sions of Article II of Chapter IV of Title IV of Part
III of the Political Code, or being authorized as as-
sistant to one who has filed such bond, as provided
by section 723 of that Code, is guilty of a misde-
meanor; and in addition to the punishment prescribed
therefor, he forfeits one hundred and twenty-five dol-
lars, for each article so exposed by him to sale, to be
recovered by a civil action in the name of the people.
Rep. Pol: Code, § 723.
OF THE STATE OF NEW YORK.
183
accepting
ment as
auctioneer
selling in
state, or
another
$503. Every auctioneer who accepts an appointment Auctioneer
as auctioneer from any other state or is concerned as appoint-
principal or partner in selling any property in any in another
other state by public auction, or who knowingly
receives any benefit on account of any such sale, is
guilty of a misdemeanor; and in addition to the
punishment prescribed therefor by law, is forever dis-
qualified after his conviction therefor, from being
licensed to act as an auctioneer within this state.
S 504. No auctioneer, in any city of this state shall
at one time have more than one place for carrying on
the general business of an auctioneer; and every
such auctioneer, before acting as such, shall file with
the clerk of such city a writing, signed by him, desig-
nating such place and naming therein the partners,
if any, engaged with him in business.
See Rep. Pol. Code, § 727.
state.
Auctioneer
places of
having two
business.
selling
goods at
other than
his regular
place of
S 505. No such auctioneer shall expose to sale by Auctioneer
public auction any articles liable to auction duties at
any other place than that so designated, except goods
sold in original packages as imported, pictures, house- business
hold furniture, libraries, stationery and such bulky
articles as have usually been sold in warehouses, or
in the public streets or on the wharves.
Rep. Pol. Code, § 728.
S 506. A violation of either of the last two sections
is punishable by a fine not exceeding two hundred
and fifty dollars for each offense.
Rep. Pol. Code, § 729.
Punish-
violating
ment for
last two
sections.
goods with-
advertise-
S 507. Every person carrying on, interested in or Selling
employed about, the business of selling property by out due
auction in the city of New York, who sells any property ment.
by auction without having first advertised the same
in the manner required by law, or is concerned in any
sale by auction not so advertised, is guilty of a mis-
demeanor.
See Rep. Pol. Code, § 731. The mode of advertising
auction sales is more particularly prescribed by that section.
184
THE PENAL CODE
What sales
must be
made by
day.
Auctioneer
omitting to
render
account.
Anctioneer
committing
fraud or
attempting
to evade
S 508. All sales of goods by public auction in the
cities of New York, Brooklyn, Albany, Buffalo, Os-
wego, Syracuse, Troy, Poughkeepsie and Rochester,
shall be made in the day-time between sunrise and
sunset, excepting :
1. Books, prints, pictures or stationery.
2. Goods sold in the original packages as imported,
according to a printed catalogue, of which samples
shall have been opened and exposed to public view
at least one day previous to the sale. Every person
who violates the provisions of this section is guilty
of misdemeanor; and in addition to the punishment
prescribed therefor by law, is forever disqualified
after his conviction therefor, from being licensed to
act as an auctioneer within this state.
This provision has been reported in substantially the
above form in Rep. Pol. Code, § 732, being there restricted
to the cities of New York and Albany. In view of the
extension of auction business in the larger towns of the
state, the Commissioners are of opinion that the section
should be extended to embrace the other cities named in
the text.
S 509. Every auctioneer, and every partner or clerk
of an auctioneer, and every person whatever in any
way connected in business with an auctioneer, who
willfully omits to render any semi-annual or other
account, by law required to be rendered, at the time
or in the manner prescribed by law, or who willfully
omits to pay over any duties legally payable by him
at the time and in the manner prescribed by law, is
guilty of a misdemeanor.
See Rep. Pol. Code, §§ 738-748.
S510. Every auctioneer, and every partner or clerk
of any auctioneer, and every person whatever in any
way connected in business with an auctioneer, who
sions of the commits any fraud or deceit, or by any fraudulent
the provi
Political
Code.
means whatever seeks to evade or defeat the provi-
sions of Chapter IV of Title IV of Part III of the Politi-
cal Code, entitled AUCTIONS, is guilty of misdemeanor ;
OF THE STATE OF NEW YORK.
185
and in addition to the punishment prescribed therefor
is liable in treble damages to any party injured
thereby.
Rep. Pol. Code, § 750.
S511. Every person whose duty it may be to de-
liver to any collector of tolls upon any of the canals
belonging to this state, a bill of lading of any pro-
perty transported upon any such canal, who delivers
a false bill of lading as true, or makes or signs a
false bill of lading intending it to be delivered as
true, knowing such bill to be false, is punishable by
imprisonment in a state prison not exceeding two
years, or by a fine not exceeding three times the
value of any property omitted in such bill, or both.
Suggested as a substitute for Rep. Pol. Code, § 570
See 1 Rev. Stat., 241, § 125.
Delivering
lading to
false bill of
canal col-
lector.
master
making
of weight of
false entry
canal boat.
S512. Every weighmaster upon any of the canals Weigh-
belonging to this state, and every clerk of such weigh-
master, who makes a false entry of the weight of
any boat, or cargo of any boat, navigating such
canal, or who makes a false certificate of the light
weight of any boat, knowing such entry or certificate
to be false, is guilty of misdemeanor.
See Laws of 1861, ch. 124, § 4.
Canal offi-
;
cer conceal-
upon the
S513. Every public officer or agent employed by
the people of this state in relation to the canals be- ing frauds
longing to this state, who knows, or has good reason revenue.
to believe that any fraud upon the revenues of the
canals has been committed or attempted, and who
omits to disclose the same, and enforce the penalties
therefor, if within his power, is guilty of a misde-
meanor.
See Laws of 1855, ch. 534, § 4.
S 514. Every person who, without authority of law
willfully inflicts any injury upon any of the canals
belonging to this state, or disturbs or injures any of
the boats, locks, bridges, buildings, machinery or
willful in-
Juries to the
canals,
24
186
THE PENAL CODE
Drawing off
water from
canals.
Canal offi-
cer accept-
other works or erections connected with any such
canal, and in which the people of this state have an
interest, is guilty of felony.
See 1 Rev. Stat., 248, §§ 179, 180.
§ 515. Every person who draws water from any
canal in this state, or from any feeder or reservoir of
any canal, during the navigation season of the canal,
and to the detriment or injury of the navigation
thereof, without authority of law, is punishable by
imprisonment in a county jail not less than one year,
and by a fine not less than one thousand dollars.
Founded upon Laws of 1860, ch. 213, § 5, and intended
to cover the provisions of Laws of 1861, ch. 124, § 5,
and of 1 Rev. Stat., 235, §§ 94, 95.
S 516. Every public officer or agent employed by
ing bribe to the people of this state in relation to the canals be-
allow water
to be drawn longing to this state, or contractor for canal repairs,
off from
canals.
Fraudulent
appropria-
or person having any charge of any canal, or of any
part thereof, or of any lock, waste weir, feeder or
other work belonging thereto, or being employed
thereon, who asks, or accepts or promises to accept
any bribe as an inducement to permit any water to
be drawn from any canal, feeder or reservoir in viola-
tion of the last section; and every person who gives,
or offers or promises to give to any officer or person
above mentioned, any bribe as an inducement to him
to permit any water to be drawn from any canal,
feeder or reservoir in violation of this section, is
guilty of a misdemeanor.
Founded upon Laws of 1860, ch. 213, § 5.
S 517. Every person who fraudulently conceals or
tion of lost appropriates to his own use any lost treasure or any
waived property belonging to the state as sovereign,
treasure,
&c.
is guilty of a misdemeanor.
1 Black. Com., 295–297; 4 Id., 121; 9 Cox Cr.
Cas., 376.
OF THE STATE OF NEW YORK.
187
the salt
S518. Every person who willfully burns, destroys, Injuries to
or injures any salt manufactory connected with the works.
Onondaga salt springs, or any building appurtenant
to such manufactory, or any part of such manufac-
tory, or any of the buildings, reservoirs, pumps, con-
ductors or water conduits, belonging to the state,
used in the raising of salt water for the use of the
manufacturers of salt, without authority of law, is
punishable by imprisonment in a state prison not
exceeding five years.
Founded on Laws of 1859, ch. 346, § 62. That act
requires that the injury to the works should be shown to
have been inflicted "with intent to retard the pumping,
&c., of salt water for the use of manufacturers." The
words without authority of law" are substituted for
this clause, as equally consonant with justice, and im-
posing a less onerous burden of proof upon the prosecu-
tion.
S 519. Every person who enters any fort, magazine,
arsenal, armory, arsenal yard or encampment, and
seizes or takes away any arms, ammunition, military
stores or supplies belonging to the people of this
state; and every person who enters any such place
with intent so to do, is punishable by imprisonment
in a state prison not exceeding ten years.
S 520. Every person, who, in making any state-
ment, oral or written, which is required or authorized
by law to be made as the basis of imposing any
tax or assessment, or of an application to reduce
any tax or assessment, willfully makes, as to any
material matter, any statement which he knows to be
false, is guilty of a misdemeanor.
See Stat., 50 Geo. III, ch. 105, § 9.
Seizing
military
longing to
stores be-
the state.
Making
ments in
false state-
reference to
taxes.
188
{
THE PENAL CODE
TITLE XV.
OF CRIMES AGAINST PROPERTY.
CHAPTER I. Arson.
II. Burglary and housebreaking.
III. Forgery and counterfeiting.
IV. Larceny.
V. Embezzlement.
VI. Extortion.
VII. False personation, and cheats.
VIII. Fraudulently fitting out and destroying ships and vessels.
IX. Fraudulent destruction of property insured.
X. False weights and measures.
XI. Fraudulent insolvencies by individuals.
XII. Fraudulent insolvencies by corporations, and other frauds
in their management.
XIII. Frauds in the sale of passage tickets.
XIV. Frauds relative to documents of title to merchandise.
XV. Malicious injuries to railroads, highways, bridges and
telegraphs.
CHAPTER I.
ARSON.
SECTION. 521. "Arson" defined.
522. "Building" defined.
523. "Inhabited building" defined.
524. "Night time " defined.
525. “Burning" defined.
526. Ownership of the building.
527. Variance in proof of ownership.
528. What constitutes malice.
529. Intent to destroy the building, requisite.
530. Contiguous buildings.
531. Degrees of arson.
532. First degree defined.
533. Appurtenances to buildings.
534. Burning in day time, when arson in second degree.
535. Burning in night time, when arson in second degree.
536. Burning in day time, when arson in third degree.
537. Burning in night time, when arson in third degree.
538. Fourth degree defined.
539. Punishment of arson.
OF THE STATE OF NEW YORK.
189
defined.
S521. Arson is the willful and malicious burning "Arson"
of a building, with intent to destroy it.
This definition is substantially that of the common law
authorities. They, nearly all, restrict the offense to the
burning of a dwelling house, or some edifice adapted for
or connected with human occupation; making the gravity
of the offense to consist in the peril to the person which
such burning involves. (4 Blackst. Comm., 220; 2 East
P. C., 1015; Barb. Cr. L., 53; Whart. Am. Cr. L., 534;
Coke Ch., 15, 66; State v. Roe, 12 Verm., 93; People v.
Cotteral, 18 Johns., 115. See also Laws of Ga., 712; 4
U. S. Stat. at L., 115; Rep. Cr. Code, Mass.) The stat-
utes of this state have enlarged the use of the term to
include many acts of burning not involving special danger
to the person. Thus, burning a carding machine, a stack
of grain or hay, a bridge, a crop of grain, &c., &c., is arson
in the fourth degree. (2 Rev. Stat., 667, §§ 7, 8.) The
Commissioners recommend that the term "arson" be con-
fined to the offense of setting on fire buildings or edifices
(including ships and vessels, see § 521, infra). Other
criminal acts of burning should be classed under other
titles; e. g., malicious mischief. See section 703.
defined.
S522. Any house, edifice, structure, vessel, or other "Building"
erection, capable of affording shelter for human
beings, or appurtenant to, or connected with an erec-
tion so adapted, is a "building" within the meaning
of the last section.
building"
defined.
S523. Any building is deemed an "inhabited "Inhabited
building" within the meaning of this chapter, any
part of which has usually been occupied by any per-
son lodging therein at night.
People v. Orcutt, 1 Park. Cr., 252; See also Hooker
v. Commonwealth, 13 Gratt.. 763; Common-
wealth v. Barney, 10 Cush., 478; Rex v. Don-
ovan, Leach C. C., 81; Reg. v. Connor, 2 Cox
Cr. Cas., 65.
S524. The words "night time" in this chapter "Night
include the period between sunset and sunrise.
time" de-
fined.
defined.
$525. To constitute a burning within the meaning "Burning"
of section 521, it is not necessary that the building
set on fire should be destroyed. It is sufficient that
190
THE PENAL CODE
Ownership
of the build-
ing.
Variance in
proof of
fire is applied so as to take effect upon any part of
the substance of the building.
People v. Butler, 16 Johns., 203; Commonwealth
v. Van Schaack, 16 Mass., 105; State v. Sandy,
5 Ired., 570; Reg. v. Parker, 9 Carr. & P.,
45; Reg. v. Russel, 1 Carr. & M., 541. See
also, Hester v. State, 17 Geo., 130; State v.
De Bruhl, 10 Rich. Law, 23.
§ 526. To constitute arson it is not necessary that
another person than the accused should have had
ownership in the building set on fire. It is sufficient
that at the time of the burning another person was
rightfully in the possession of, or was actually occu-
pying, such building, or any part thereof.
People v. Van Blarcum, 2 Johns., 105; Shepherd v.
People, 19 N. Y. (5 Smith), 537; State v. Taylor, 45 Me.,
322. At common law arson was the maliciously burning
the house of another. East P. C., 1015. And one could
not be convicted of arson in burning his own house.
Rex v. Pealey, Leach C. C., 277; Rex v. Breeme, Id.,
261; Rex v. Spalding, Leach C. C., 248.
The offense of burning insured property with intent to
defraud the insurers. is provided for in chapter IX. of
this title.
S 527. An omission to designate, or error in desig-
ownership. nating in an indictment for arson, the owner or occu-
pant of a building, shall not prejudice the proceedings
thereupon, if it appears that upon the whole descrip-
tion given of the building, it is sufficiently identified
to enable the prisoner to prepare his defense.
What con-
stitutes
malice.
Compare Martha v. State, 26 Ala., 72; State v.
Fish, 3 Dutch., 323.
S528. Malice sufficient to constitute arson is in-
ferred from proof that the prisoner committed an act
of burning a building, and that some other person
was rightfully in possession of, or actually occupying
any part thereof. It is not necessary that the accused
should have had actual knowledge of such possession
or occupancy, or should have intended to injure
another person.
Rex v. Farrington, Russ. & Ry. C. C., 207; People v.
Van Blarcum, 2 Johns., 105; People v. Orcutt, 1 Park.
Cr., 252; People v. Henderson, Id., 563; Jesse v. Stato,
OF THE STATE OF NEW YORK.
191
28 Miss., 100. In Reg. v. Regan (4 Cox Cr. Cas., 335),
it appeared that the prisoner's intent in setting fire to the
building was to obtain a reward offered for giving the
earliest intimation of a fire, at the engine station. Held,
he was guilty of arson.
$529. But the burning of a building under circum-
stances which shows beyond a reasonable doubt that
there was no intent to destroy it, is not arson.
People v. Cotteral, 18 Johns., 115.
State v. Mitchell, 5 Ired., 350.
Intent to
building
destroy the
requisite.
buildings.
$ 530. Where any appurtenance to any building is Contiguous
so situated with reference to such building, or where
any building is so situated with reference to another
building that the burning of the one will manifestly
endanger the other, a burning of the one is deemed
a burning of the other, within the foregoing definition
of arson, and as against any person actually partici-
pating in the original setting fire, as of the moment
when the fire from the one shall communicate to and
burn the other.
Robert's case, 2 East P. C., 1030; Isaac's case,
Id., 1031; Reg. v. Fletcher, 2 Carr. & K.,
215; Reg. v. Price, 1 Id., 73; Rex v. Petley,
Leach C. C., 277.
S531. Arson is distinguished into four degrees.
Degrees of
arson.
defined.
S 532. Maliciously burning in the night time an First degre
inhabited building, in which there is at the time some
human being, is arson in the first degree.
Founded upon 2 Rev. Stat., 657, § 9. Taken in con-
nection with the definition of "building," and "inhabi-
ted," given in sections 522 and 523 of this Code, the
foregoing section would embrace as arson in the first
degree, the burning of a ship or vessel while lying within
this state. This is, by the Revised Statutes (2 Rev. Stat.,
667, § 4), only arson in the third degree; but it is an
offense of as grave a character as burning an inhabited
dwelling.
S 533. No warehouse, barn, shed, or other out- Appurte
house, is a subject of arson in the first degree, unless buildings,
nances to
192
THE PENAL CODE
1
Burning in
day time,
it is immediately connected with, and forms part of,
an inhabited building.
Founded upon 2 Rev. Stat., 657, § 10.
S 534. Maliciously burning in the day time an in-
when argon habited building, in which there is at the time some
human being, is arson in the second degree.
in second
degree.
Burning in
night time,
in second
dogrec.
Substituted for 2 Rev. Stat., 666, § 1.
S 535. Maliciously burning in the night time a
when arson building, not an inhabited building, but adjoining to
or within the curtilage of an inhabited building in
which there is at the time some human being, so that
such inhabited building is endangered, even though
it be not in fact injured by such burning, is arson in
the second degree.
Burning in
day time,
See Peverelly v. People, 3 Park. Cr., 59.
S 536. Maliciously burning in the day time a build-
when arson ing, the burning of which in the night time would
be arson in the second degree, is arson in the third
degree.
in third
degree.
Burning in
night time,
S 537. Maliciously burning in the night time any
when arson building, not the subject of arson in the first or
in third
degree.
Fourth
degree
defined.
Punish-
ment of
arson
second degree, including any house for public wor-
ship, school house, or public building belonging to
the people of this state, or to any county, city, town
or village, any building in which have usually been
deposited the papers of any public officer, and any
barn, mill or manufactory, is arson in the third
degree.
Founded on 2 Rev. Stat., 667, § 4.
§ 538. Maliciously burning in the day time any
building, the burning of which in the night time
would be arson in the third degree, is arson in the
fourth degree.
Founded on 2 Rev. Stat., 667, § 7.
§ 539. Arson is punishable by imprisonment in a
state prison, as follows:
1
OF THE STATE OF NEW YORK.
193
1. Arson in the first degree, for any term not less
than ten years;
2. Arson in the second degree, not exceeding ten
years and not less than seven years;
3. Arson in the third degree, not exceeding seven
years and not less than four years;
4. Arson in the fourth degree, not exceeding four
years and not less than one year; or by imprison-
ment in a county jail not exceeding one year.
The above are the grades of punishment recently pre-
scribed by statute, (Laws of 1862, ch. 197, §§ 7, 8,) as a
substitute for the provisions of the Revised Statutes.
Under those provisions arson was punishable, in the
first degree, by death (2 Rev. Stat., 656, § 1); in the
second degree by imprisonment in a state prison not less
than ten years; in the third degree by like imprisonment
not more than ten years and not less than seven; and in
the fourth degree by like imprisonment not more than
seven years and not less than two, or by imprisonment
in a county jail not exceeding one year. (2 Rev. Stat.,
667, § 9.) In view of the many and aggravated instan-
ces of this crime which have recently occurred, there
seems reason to favor a return to the more stringent
system of punishment prescribed by the former law.
The commissioners have, however, presented the exist-
ing rules in the text, leaving the question of a restora-
tion of those formerly in force, to the consideration of
the legislation.
CHAPTER II.
BURGLARY AND HOUSEBREAKING.
SECTION 540. Burglary in first degree defined.
541. Breaking into dwelling house in the day time, burglary in
second degree.
542. Breaking inner door in night time, burglary in second de-
gree.
543. Such breaking by person lawfully in the house, burglary in
second degree.
544. Breaking into dwelling house, when burglary in third de-
gree.
545. Other burglaries of the third degree.
546. Breaking and entering dwelling, when burglary in fourth
degree.
547. Breaking out of dwelling house, burglary in fourth degree.
25
194
THE PENAL CODE
Burglary in
first degree
defined.
SECTION 548. Punishment of burglary.
549. Having possession of burglar's implements.
550. Entering buildings other than dwelling houses.
551. "Dwelling house" defined.
552. "Night time" defined.
S 540. Every person who, with intent to commit
some crime therein, breaks into and enters in the
night time the dwelling house of another, in which
there is at the time some human being, either:
1. By forcibly bursting or breaking the wall, or an
outer door, window, or shutter of a window of such
house, or the lock or bolt of such door, or the fasten-
ing of such window or shutter; or,
2. By any other means, being armed with any dan-
gerous weapon, or being assisted or aided by one or
more confederates, then actually present; or,
3. By unlocking an outer door by means of false
keys, or by picking the lock thereof;
Is guilty of burglary in the first degree.
2 Carr. & P.,
2 Rev. Stat., 668, § 10. It has not been thought best
to insert any definition of "breaking" or of "entering,"
but rather to leave the meanings of those words, now
quite well settled, to adjudication. For cases on the
subject, see Rex v. Cornwall, 2 Stra., 880; Rex v. Gray,
1 Id., 481; Rex v. Gibbons, Fost., 107; Rex v. Hughes,
Leach C. C., 452; Reg. v. Davis, 6 Cox Cr. Cus., 367;
Reg. v. O'Brien, 4 Id., 398; Reg. v. Meal, 3 Id., 70; Reg.
v. Wenmouth, 8 Cox Cr. Cas., 483; Reg. v. Wheeldon,
8 Carr. & P., 747; Rex v. Paine, 7 Id., 135; Rex v. Jor-
dan, 7 Id., 432; Reg. v. Bird, 9 Id., 44; Rex v. Hughes,
1 Leach C. C., 406; 2 East P. C., 491; Rex v. Lewis,
628; Rex v. Brown, 2 East P. C., 487;
2 Leach C. C., 1016; Rex v. Johnson, 2 East P. C., 488;
Rex v. Bailey, Russ. & R. C. C., 341; 2 Russ. C. & M.,
12; 1 R. & M. C. C., 23; Rex v. Perkes, 1 Carr. & P.,
300; Rex v. Lawrence, 4 Carr. & P., 231; Rex v. Rus-
sell, 1 M. C. C. R., 377; State v. McCall, 4 Ala., 643;
State v. Wilson, Coxe, 439; Commonwealth v. Steward, 7
Dane's Ab., 136; Com. v. Stephenson, 8 Pick., 354;
People v. Boujet, 2 Park. Cr. Rep., 11; Commonwealth
v. Trimmer, 1 Mass., 476; Finch's case, 14 Gratt., 643;
Guche's case, 6 City Hall Rec., 1: Robertson's case, 4
Id., 63; Smith's case, Id., 62; People v. Tralick, Hill &
D., 63; People v. Bush, 3 Park. Cr., 552.
OF THE STATE OF NEW YORK.
195
into dwell-
ing house
time bur
in the day
S 541. Every person who breaks into any dwelling Breaking
house in the day time under such circumstances as
would have constituted the crime of burglary in the
first degree, if committed in the night time, is guilty
of burglary in the second degree.
2 Rev. Stat., 668, § 11.
glary in
second
degree
inner door
time, bur-
glary in
degree.
S 542. Every person who, having entered the dwell- Breaking
ing house of another in the night time, through an innight
open outer door or window, or other aperture not
made by such person, breaks any inner door, win-
dow, partition, or other part of such house, with
intent to commit any crime, is guilty of burglary in
the second degree.
Founded upon 2 Rev. Stat., 668, § 14.
S 543. Every person who, being lawfully in any
dwelling house, breaks in the night time any inner
door of the same house, with intent to commit any
crime, is guilty of burglary in the second degree.
Founded upon 2 Rev. Stat., 669, § 15. The language
of that section is: "Every person who, being admitted
into any dwelling house with the consent of the occu-
pant thereof, or who being lawfully in such house," &c.
The Commissioners in omitting the words, "being admit-
ted into any dwelling house with the consent of the
occupant thereof," do not intend any substantial change
in the law, but deem those words fully covered by the
clause in the text; "being lawfully in any dwelling
house."
hyper-
Such break.
in the house
second
son lawfully
burglary in
degree.
into dwell-
ing house
when bur-
glary in
third de-
S 544. Every person who breaks into any dwelling Breaking
house in the night time, with intent to commit a
crime, but under such circumstances as do not con-
stitute the offense of burglary in the first degree, is
guilty of burglary in the third degree.
2 Rev. Stat., 668, § 12; modified by reducing the
offense to the third degree.
gree.
$545. Every person who breaks and enters, in the Other
day or in the night time, either:
1. Any building within the curtilage of a dwelling
house, but not forming a part thereof; or
burglaries
of the third
degree.
1,96
THE PENAL CODE
Breaking
and enter-
ing dwell-
ing, when
fourth
degree.
2. Any building or part of any building, booth,
tent, railroad car, vessel, or other structure or erec-
tion in which any property is kept, with intent to
steal therein or to commit any felony,
Is guilty of burglary in the third degree.
Compare 2 Rev. Stat., 669, § 17, as amended, Laws of
1863, ch. 244.
S 546. Every person who breaks and enters the
dwelling house of another, by day or by night, in
burglary in such manner as not to constitute any burglary speci-
fied in the preceding section, with intent to commit a
crime, is guilty of burglary in the fourth degree.
Breaking
out of
dwelling
house
burglary in
fourth
degree.
Punish-
ment of
burglary.
See 2 Rev. Stat., 668, § 13, which declares this species
of offeuse to be burglary in the second degree. The sec-
tion in the text also merges 2 Rev. Stat., 669, § 18.
S 547. Every person who, having committed any
crime in the dwelling house of another, breaks in the
night time, any outer door, window shutter, or other
part of such house, to get out of the same, is guilty
of burglary in the fourth degree.
See 2 Rev. Stat., 668, § 13.
The following provisions of 2 Rev. Stat., 669, are here
omitted, not with intention to change the existing law,
but because they are embraced in the general provision
of § 2 of this Code.
§ 19. The breaking out of any dwelling house by any
person being therein, shall not be deemed such a break-
ing of a dwelling house as to constitute burglary, in any
case other than such as are herein particularly specified.
§ 20. The breaking of the inner door of any house by
any person being therein, shall not be deemed such a
breaking of a dwelling house as to constitute burglary, in
any case other than such as are herein particularly specified.
S 548. Burglary is punishable by imprisonment in
a state prison as follows:
1. Burglary in the first degree, for any term not
less than ten years;
2. Burglary in the second degree, not exceeding ten
years, and not less than five;
OF THE STATE OF NEW YORK.
197
3. Burglary in the third degree, not exceeding five
years;
4. Burglary in the fourth degree, not exceeding
three years.
Compare 2 Rev. Stat., 669, § 21. A lesser punishment
for burglary in the fourth degree, is here added to those
prescribed for the higher degrees by the Revised Statutes.
S 549. Every person who, under circumstances not
amounting to any felony, has in his possession in the
night time any dangerous, offensive weapon or instru-
ment whatever, or any picklock, crow, key, bit, jack,
jimmy, nippers, pick, betty or other implement of
burglary, with intent to break and enter any build-
ing or part of any building, booth, tent, railroad car,
vessel or other structure or erection and to commit
any felony therein, is guilty of a misdemeanor.
See Laws of 1862, ch. 374, § 1.
Having
of burglar's
possession
implements
buildings
other than
houses.
dwelling
$ 550. Every person who, under circumstances not Entering
amounting to any burglary, enters any building or
part of any building, booth, tent, warehouse, rail-
road car, vessel or other structure or erection with
intent to commit any felony, larceny or malicious
mischief, is guilty of a misdemeanor.
Sce Laws of 1862, ch. 374, § 1.
house"
S 551. The term "dwelling house," as used in this "Dwelling
chapter, includes every house or edifice any part of defined.
which has usually been occupied by any person
lodging therein at night, and any structure joined
to and immediately connected with such a house or
edifice.
The only attempt at a definition of "dwelling house"
in our existing statute law of burglary, is that found in
2 Rev. Stat., 669, § 16, viz.: "No building shall be
deemed a dwelling house, or any part of a dwelling
house within the meaning of the foregoing provisions,
unless the same be joined to, immediately connected
with, and part of a dwelling house." While this pro-
vision may have served a useful purpose in excluding
from the provisions of the statutes relative to burglary
a class of buildings wholly disconnected from dwelling
198
THE PENAL CODE
"Night
time
defined.
houses, it is wholly useless as a definition. It entirely
fails to designate what is to be considered a dwelling
house; and indeed, if literally taken, excludes all habi-
tations standing alone. The Commissioners have given
in the text a distinct definition of the term.
S 552. The words "night time," in this chapter,
include the period between sunset and sunrise.
Corresponds with § 524 of this Code, relative to arson.
CHAPTER III.
FORGERY AND COUNTERFEITING.
SECTION 553. Forgery of wills, conveyances, certificates of acknowledg-
ment, &c.
554. Forgery of public securities.
555. Forgery of public and corporate seals.
556. Forgery of records and official returns.
557. Making false entries in records or returns.
558. False certificates of acknowledgment or proof.
559. Making false bank note plates, &c.
560. What plate may be deemed an imitation of a genuine plate.
561. Uttering forged evidences of debt.
562. Having possession of certain forged evidences of debt with
intent to utter them.
563. Having possession of other forged instruments.
564. Issuing spurious certificates of stock in corporations.
565. Re-issuing canceled certificates of stock.
566. Issuing false evidences of debt of corporations.
567. Counterfeiting coin to be circulated within this state.
568. Counterfeiting coin to be exported.
569. Forging process of court, and other instruments.
570. Making false entries in accounts of certain public officers.
571. Forging passage tickets.
572. Forging United States stamps.
573. Making false entries in books of accounts of corporations.
574. Clerks and others making false entries, in employer's books.
575. Having possession of counterfeit coin, with inten. to utter.
576. Punishment of forgery.
577. Uttering forged instrument, or coin, forgery in same degree
as making it.
578. Exception, when such instrument or coin was received in
good faith.
579. Fraudulently signing one's own name, as that of another.
580. Fraudulently indorsing one's own name.
581. Erasures and obliterations.
582. "Writing" and "written instruments" defined.
583. Fictitious names of officers of corporations.
OF THE STATE OF NEW YORK.
199
S 553. Every person who, with intent to defraud, Forgery of
forges, counterfeits or falsely alters:
wills, con-
veyances,
certificates
of acknow.
&c.
1. Any will or codicil of real or personal property, ledgment,
or any deed or other instrument being or purporting
to be the act of another, by which any right or
interest in real property is or purports to be trans-
ferred, conveyed or in any way charged or affected; or,
2. Any certificate or indorsement of the acknow-
ledgment by any person of any deed or other instru-
ment which by law may be recorded or given in
evidence, made or purporting to have been made by
any officer duly authorized to make such certificate
or indorsement; or,
3. Any certificate of the proof of any deed, will,
codicil or other instrument which by law may be
recorded or given in evidence, made or purporting to
have been made by any court or officer duly autho-
rized to make such certificate,
Is guilty of forgery in the first degree.
2 Rev. Stat., 670, § 22.
S 554. Every person who, with intent to defraud, Forgery of
forges, counterfeits or falsely alters:
1. Any certificate or other public security, issued or
purporting to have been issued under the authority
of this state, by virtue of any law thereof, by which
certificate or other public security, the payment of
any money absolutely or upon any contingency is
promised, or the receipt of any money or property
acknowledged; or,
2. Any certificate of any share, right or interest in
any public stock created by virtue of any law of this
state, issued or purporting to have been issued by
any public officer, or any other evidence of any debt
or liability of the people of this state, either absolute
or contingent, issued or purporting to have been
issued by any public officer; or,
3. Any indorsement or other instrument transfer-
ring or purporting to transfer the right or interest of
public
securities.
200
THE PENAL CODE
Forgery of
public and
corporate
seals.
Forgery of
records and
official re-
turns.
any holder of any such certificate, public security,
certificate of stock, evidence of debt or liability, or
of any person entitled to such right or interest,
Is guilty of forgery in the first degree.
2 Rev. Stat., 670, § 23. That section contained a clause in
subd. 1, punishing also the forgery of any bill of credit here-
tofore issued by or under the authority of the legislature of
this state, or purporting to have been so issued. As the
Constitution of the United States (art. 1, § 10, subd. 1),
prohibits the state from emitting any bills of credit, it
seems unnecessary to continue this provision longer.
$555. Every person who, with intent to defraud,
forges or counterfeits the great or privy seal of this
state, the seal of any public office authorized by law,
the seal of any court of record, including surrogates'
seals, or the seal of any corporation created by the
laws of this state or of any other state, government
or country, or any other public seal authorized or
recognized by the laws of this state, or of any other
state, government or country, or who falsely makes,
forges or counterfeits any impression purporting to
be the impression of any such seal, is guilty of forgery
in the second degree.
2 Rev. Stat., 671, § 24; extended to protect seals of
foreign corporations.
S 556. Every person who, with intent to defraud,
falsely alters, destroys, corrupts or falsifies:
1. Any record of any will, codicil, conveyance or
other instrument, the record of which is, by law, evi-
dence; or,
2. Any record of any judgment in a court of record,
or any enrollment of any decree of a court of equity;
or,
3. The return of any officer, court or tribunal to
any process of any court,
Is guilty of forgery in the second degree.
2 Rev. Stat., 671, § 25.
OF THE STATE OF NEW YORK.
201
Making
false
in records
§ 557. Every person who, with intent to defraud, tries
falsely makes, forges or alters any entry in any book or returns.
of records, or any instrument purporting to be any
record or return, specified in the last section, is guilty
of forgery in the second degree.
See 2 Rev. Stat., 671, § 26.
tificates of
acknow-
$ 558. If any officer authorized to take the acknow- False cer-
ledgment or proof of any conveyance of real estate, ledgment
or of any other instrument which by law may be or proof.
recorded, knowingly and falsely certifies that any
such conveyance or instrument was acknowledged by
any party thereto, or was proved by any subscribing
witness, when in truth such conveyance or instru-
ment was not acknowledged or proved as certified, he
is guilty of forgery in the second degree.
See 2 Rev. Stat., 671, § 27.
S 559. Every person who makes or engraves, or
causes or procures to be made or engraved, any plate
in the form or similitude of any promissory note, bill
of exchange, draft, check, certificate of deposit or
other evidence of debt, issued by any banking cor-
poration or association, or individual banker, incorpo-
rated or carrying on business under the laws of this
state, or of any other state, government or country,
without the authority of such bank; or has or
keeps in his custody or possession any such plate,
without the authority of such bank, with intent to
use or permit the same to be used for the purpose of
taking therefrom any impression, to be passed, sold or
altered; or has or keeps in his custody or possession,
without the authority of such bank, any impression
taken from any such plate, with intent to have the
same filled up and completed for the purpose of being
passed, sold or altered; or makes or causes to be made,
or has in his custody or possession, any plate upon
which are engraved any figures, or words, which may
be used for the purpose of falsely altering any evi-
dence of debt issued by any such bank, with the
intent to use the same, or to permit them to be used
Making
false bank
note plates,
&c.
26
202
THE PENAL CODE
What plate
may be
deemed an
imitation of
a genuine
plate.
Uttering
forged evi-
dences of
debt.
Having
possession
of certain
forged evi-
dences of
debt with
intent to
utter them.
for such purpose, is guilty of forgery in the second
degree.
Founded upon 2 Rev. Stat., 672, § 30.
S 560. Every plate specified in the last section
shall be deemed to be in the form and similitude of
the genuine instrument imitated, in either of the
following cases:
1. When the engraving on such plate resembles
and conforms to such parts of the genuine instru-
ment as are engraved; or,
2. When such plate is partly finished, and the part
so finished resembles and conforms to similar parts
of the genuine instrument.
2 Rer. Stat., 672, § 31.
S 561. Every person who sells, exchanges or deliv-
ers any forged or counterfeited promissory note,
check, bill, draft, or other evidence of debt, or
engagement for the payment of money absolutely,
or upon any contingency, knowing the same to be
forged or counterfeited, with the intent to have the
same uttered or passed; or who offers any such note
or other instrument for sale, exchange or delivery,
with the like knowledge and intent; or who receives
any such note or other instrument upon a sale, ex-
change or delivery, with the like knowledge and
intent; whether the same be done for or without any
consideration, is guilty of forgery in the second
degree.
2 Rev. Stat., 673, § 32. The original section is limi-
ted to cases where the uttering is "for any consider-
ation."
S 562. Every person who, with intent to defraud,
has in his possession any forged, altered or counter-
feited negotiable note, bill, draft, or other evidence
of debt, issued or purporting to have been issued by
any corporation or company duly authorized for that
purpose by the laws of this state, or of any other
state, government or country, the forgery of which
is herein before declared to be punishable, knowing
OF THE STATE OF NEW YORK.
203
the same to be forged, altered or counterfeited, with
intent to utter the same as true, or as false, or to
cause the same to be so uttered, is guilty of forgery
in the second degree.
2 Rev. Stat., 674, § 36.
S 563. Every person who has in his possession any
forged or counterfeited instrument, the forgery of
which is herein before declared to be punishable, other
than such as are enumerated in the last section, know-
ing the same to be forged, counterfeited or falsely
altered, with intent to injure or defraud by uttering the
same as true, or as false, or by causing the same to be
so uttered, is guilty of forgery in the fourth degree.
2 Rev. Stat., 674, § 37.
Having
of other
struments.
possession
forged in-
spurious
$ 564. Every officer, and every agent of any cor- Issuing
poration or joint stock association formed or existing certificates
under or by virtue of the laws of this state, or of any tions
corpora-
other state, government or country, who, within this
state, willfully signs or procures to be signed, with
intent to issue, sell or pledge, or to cause to be
issued, sold or pledged, or who willfully issues, sells
or pledges or causes to be issued, sold or pledged,
any false or fraudulent certificate or other evidence
of the ownership or transfer of any share or shares of
the capital stock of such corporation or association,
whether of full paid shares or otherwise, or of any
interest in its property or profits, or any certificate
or other evidence of such ownership, transfer or
interest, or any instrument purporting to be a certi-
ficate or other evidence of such ownership, transfer
or interest, the signing, issuing, selling or pledging of
which has not been duly authorized by the board
of directors or other managing body of such corpo-
ration or association having authority to issue the
same, is guilty of forgery in the second degree.
canceled
S 565. Every officer, and every agent of any corpo- Reissuing
ration or joint stock association formed or existing certificates
under or by virtue of the laws of this state, or of any
of stock.
204
THE PENAL CODE
Issuing
false evi-
dences of
debt of cor-
poration.
Counter-
feiting coin
lated within
this state.
other state, government or country, who within this
state willfully reissues, sells or pledges, or causes to
be reissued, sold or pledged, any surrendered or can-
celed certificate, or other evidence of the ownership
or transfer of any share or shares of the capital stock
of such corporation or association, or of an interest
in its property or profits, with intent to defraud, is
guilty of forgery in the second degree.
S 566. Every officer, and every agent of any cor-
poration, municipal or otherwise, or of any joint stock
association formed or existing under or by virtue of
the laws of this state, or of any other state, govern-
ment or country, who, within this state, willfully
signs or procures to be signed with intent to issue,
sell or pledge, or to cause to be issued, sold or
pledged, or who willfully issues, sells or pledges,
or causes to be issued, sold or pledged any false or
fraudulent bond or other evidence of debt against
such corporation or association, or any instrument
purporting to be a bond or other evidence of debt
against such corporation or association, the signing,
issuing, selling or pledging of which has not been
duly authorized by the board of directors or com-
mon council or other managing body or officers of
such corporation having authority to issue the same,
is guilty of forgery in the second degree.
The three preceding sections embody 2 Rev. Stat., 676,
§ 49, and Laws of 1855, ch. 155, §§ 1, 2.
S 567. Every person who counterfeits any gold or
to be circu- silver coin, whether of the United States or of any
foreign government or country, with intent to sell,
utter, use or circulate the same as genuine, within
this state, is guilty of forgery in the second degree.
Substituted for 2 Rev. Stat., 671, § 28: "Every person
who shall be convicted of having counterfeited any of
the gold or silver coins which shall be at the time current
by custom or usage within this state, shall be adjudged
guilty of forgery in the second degree."
OF THE STATE OF NEW YORK.
205
ing coin to
be exported
S 568. Every person who counterfeits any gold or Counterfeit
silver coin, whether of the United States or of any
foreign country or government, with intent to export
the same, or permit the same to be exported, and to
injure or defraud any foreign government, or the sub-
jects thereof, is guilty of forgery in the third degree.
Proposed as a substitute for 2 Rev. Stat., 672, § 29.
S 569. Every person who, with intent to defraud, Forging
falsely makes, alters, forges or counterfeits:
1. Any instrument in writing, being or purporting
to be any process issued by any competent court, mag-
istrate or officer; or being, or purporting to be, any
pleading, proceeding, bond or undertaking filed or
entered in any court; or being, or purporting to be,
any certificate, order or allowance by any competent
court or officer; or being, or purporting to be, any
license or authority authorized by any statute; or,
2. Any instrument or writing by which any pecu-
niary demand or obligation is, or purports to be, or
to have been, created, increased, discharged or dim-
inished, or by which any rights or property whatever,
are or purport to be, or to have been, transferred, con-
veyed, discharged, diminished, or in any manner
affected, the punishment of which is not herein before
prescribed, by which false making, altering, forging
or counterfeiting, any person may be affected, bound,
or in any way injured in his person or property,
Is guilty of forgery in the third degree.
2 Rev. Stat., 673, § 33; modified to embrace such cases
as the alteration of a paid check, by the maker, to defraud
the bank in final settlement of accounts. See Britton v.
Bank of London, 3 Fost. & F., 465; 11 Weekly R., 569;
8 Law T. (N. S.), 382; also, People v. Fitch, 1 Wend., 148.
S570. Every person who, with intent to defraud,
makes any false entry or falsely alters any entry made
in any book of accounts kept in the office of the
process of
court, and
other in-
struments.
Making
in accounts
public
false entries
of certain
officers.
206
THE PENAL CODE
Forging
passage
tickets.
Forging U.
S. stamps.
Making
false entries
comptroller of this state, or in the office of the trea-
surer, or of the state engineer and surveyor, or of any
county treasurer, by which any demand or obligation,
claim, right or interest, either against or in favor of
the people of this state, or any county or town, or
any individual, is, or purports to be, discharged,
diminished, increased, created, or in any manner
affected, is guilty of forgery in the third degree.
2 Rev. Stat., 673, § 34.
$ 571. Every person who, with intent to defraud,
forges, counterfeits, or falsely alters any ticket, check
or other paper or writing, entitling or purporting to
entitle the holder or proprietor thereof to a passage
upon any railroad, or in any vessel or other public
conveyance; and every person who, with like intent,
sells, exchanges or delivers, or keeps or offers for sale,
exchange or delivery, or receives upon any purchase,
exchange or delivery, any such ticket, knowing the
same to have been forged, counterfeited or falsely
altered, is guilty of forgery in the third degree.
See Laws of 1855, ch. 499, § 4.
S 572. Every person who forges, counterfeits or
alters any postage or revenue stamp of the United
States, or who sells, or offers, or keeps for sale, as
genuine or as forged, any such stamp, knowing it to
be forged, counterfeited or falsely altered, is guilty
of forgery in the third degree.
This section is new and adapted to the recent intro-
duction of stamps under the laws of the United States.
It has not been intended to draft the section so as to
render punishable frauds upon the revenue of the United
States by using forged stamps. That crime is left to the
legislation of congress. The object of the section is solely
to protect inhabitants of this state from fraudulent sales
of forged stamps.
S 573. Every person who, with intent to defraud,
in books of makes any false entry, or falsely alters any entry made
account, of
corpora-
tions.
in any book of accounts kept by any corporation
OF THE STATE OF NEW YORK.
207
within this state, or in any book of accounts kept by
any such corporation or its officers, and delivered, or
intended to be delivered, to any person dealing with
such corporation, by which any pecuniary obligation,
claim or credit is, or purports to be, discharged,
diminished, increased, created, or in any manner
affected, is guilty of forgery in the third degree.
Founded upon 2 Rev. Stat., 673, § 35. That section is
limited to books kept by "moneyed" corporations, The
Commissioners have omitted the word "moneyed,"
recommending that the provision be made general.
S 574. Every person who, being a member or offi-
cer, or in the employment of any corporation, asso-
ciation, partnership or individual, falsifies, alters,
erases, obliterates or destroys any account or book of
accounts or records belonging to such corporation,
association, partnership or individual, or appertaining
to their business, or makes any false entries in such
account or book, or keeps any false account in such
business, with intent to defraud any person or to
conceal any embezzlement of any money or property,
or any defalcation, or other misconduct, committed
by any person in the management of their business,
is guilty of forgery in the fourth degree.
§ 575. Every person who has in his possession any
counterfeit of any gold or silver coin, whether of the
United States or of any foreign country or govern-
ment, knowing the same to be counterfeited, with
intent to sell, utter, use, circulate or export the same,
as true or as false, or to cause the same to be so
uttered or passed, is guilty of forgery in the fourth
degree.
Founded upon 2 Rev. Stat., 674, § 38. The words
"whether of the United States or of any foreign country
or government," are substituted instead of the words
"which shall be at the time current in this state," to
correspond with the language employed in sections 567
and 568.
Clerks and
others
making
false entries
ers' books.
in employ-
Having pos
counterfeit
intent to
session of
coin, with
utter.
S 576. Forgery is punishable by imprisonment in a Punish-
state prison as follows:
ment of
forgery.
208
THE PENAL CODE
Uttering
forged in-
strument,
or coin,
forgery in
same de-
gree as
making it.
Exception,
when such
or coin was
received in
good faith.
1. Forgery in the first degree, by imprisonment not
less than ten years;
2. Forgery in the second degree, not exceeding ten
years, and not less than five;
3. Forgery in the third degree, not exceeding five
years;
4. Forgery in the fourth degree, by imprisonment
in a state prison not exceeding two years, or by
imprisonment in a county jail not exceeding one
year.
2 Rev. Stat., 675, § 42.
S577. Every person who, with intent to defraud,
utters or publishes as true any forged, altered or
counterfeited instrument, or any counterfeit gold
or silver coin, the forging, altering or counterfeiting
of which is herein before declared to be punishable,
knowing such instrument or coin to be forged, altered
or counterfeited, is guilty of forgery in the same
degree as if he had forged, altered or counterfeited
the instrument or coin so uttered, except as in the
next section specified.
S 578. If it appears on the trial of the indictment,
instrument that the accused received such forged or counterfeited
instrument or coin from another, in good faith, and
for a good and valuable consideration, without any
circumstances to justify a suspicion of its being forged
or counterfeited, the jury may find the defendant
guilty of forgery in the fourth degree.
Fraudulent-
ly signing
one's own
name as
that of
another.
2 Rev. Stat., 674, §§ 39, 40.
S579. Every person who, with intent to defraud,
makes or subscribes any instrument in his own name,
intended to create, increase, discharge, defeat or
diminish any pecuniary obligation, right or interest, or
to transfer or affect any property whatever, and utters
or passes such instrument, under the pretense that
it is the act of another who bears the same name,
or that it is the act of a person who does not exist, is
guilty of forgery in the same degree as if he had
OF THE STATE OF NEW YORK.
209
forged the instrument of a person bearing a different
name from his own.
2 Rev. Stat., 674, § 41.
!
ly indors-
own name.
$ 580. Every person who, with intent to defraud, Fraudulent-
indorses any negotiable instrument in his own name, ing one's
and utters or passes such instrument, under the frau-
dulent pretense that it is indorsed by another person
who bears the same name, or does not exist, is guilty
of forgery in the same degree as if he had forged
the indorsement of a person bearing a different name
from his own.
and obliter-
S 581. The total or partial erasure, or obliteration Erasures
of any instrument or writing, with intent to defraud, ations.
by which any pecuniary obligation, or any right,
interest or claim to property is or is intended to be
created, increased, discharged, diminished or in any
manner affected, is forgery in the same degree as the
false alteration of any part of such instrument or
writing.
6 Rev. Stat., 675, § 43
16
and writ-
ment"
S 582. Every instrument partly printed and partly "Writing"
written, or wholly printed with a written signature ten instru-
thereto, and every signature of an individual, firm or defined.
corporation, or of any officer of such body, and every
writing purporting to be such signature, is a writing
or a written instrument, within the meaning of the
provisions of this chapter.
2 Rev. Stat., 675, § 45.
S 583. The false making or forging of an evidence
of debt purporting to have been issued by any cor-
poration and bearing the pretended signature of any
person as an agent or officer of such corporation, is
forgery in the same degree as if such person was at
the time an officer or agent of such corporation; not-
withstanding such person may never have been an
officer or agent of such corporation, or notwithstand-
ing there never was any such person in existence.
2 Rev. Stat. 675, § 47.
Fictitious
names of
officers and
tions.
of corpora-
27
210
THE PENAL CODE
Larceny
defined.
CHAPTER IV.
LARCENY.
SECTION 584. Larceny defined.
585. Larceny of lost property.
586. Grand and petit larceny.
587. Grand larceny defined.
588. Petit larceny.
589. Punishment of grand larceny.
590. Punishment of petit larceny.
591. Of grand larceny committed in dwelling house or vessel.
592. Of grand larceny committed in the night time, from the
person.
593. Larceny of written instrument.
594. Value of passage ticket.
595. Securities completed, but not yet issued, declared property.
596. Severing and removing a part of the realty, declared
larceny.
597. Stealing wrecked goods, &c.
598. Receiving stolen property.
599. Fraudulent consumption of illuminating gas.
600. Larceny committed out of this state.
S 584. Larceny is the taking of personal property
accomplished by fraud or stealth, or without color of
right thereto, and with intent to deprive another
thereof.
Four of the crimes affecting property, require to be
somewhat carefully distinguished; robbery, larceny,
extortion and embezzlement. The leading distinctions
between these, in the view taken by the Commissioners,
may be briefly stated thus: All four include the crimi-
nal acquisition of the property of another. In robbery
this is accomplished by means of force or fear, and by
overcoming or disregarding the will of the rightful pos-
sessor. There is a taking of property from another
against his consent; the physical power to resist being
overcome by force, or what is equivalent in law, the
moral power to refuse being prostrated by fear. In
larceny there is still a taking; but it is accomplished by
fraud or stealth; the property is taken, not against the
consent of the owner, but without it. In extortion there
is again a taking. Now it is with the consent of the
party injured; but this is a consent induced by threats,
or under color of some official right. In embezzlement
there is no taking, in the technical sense; that is, no
taking from the possession of another. The offender
OF THE STATE OF NEW YORK.
211
being in possession of the property in virtue of some
trust, which the law deems worthy of special sanction,·
applies it by fraud or stealth to his own use. Thus
extortion partakes in an inferior degree of the nature of
robbery, and embezzlement shares that of larceny.
In larceny it is not necessary that the property taken
should be strictly the property of another person. A
man may be guilty of stealing his own property, when
done with intent to charge another person with the value
of it; e. g., where property which has been levied upon
is stolen from the officer by the general owner. Palmer
v. People, 10 Wend., 165; see also People v. Call, 1 Den.,
120.
As to what property may be the subject of larceny,
see Rex v. Westbee, Leach, 15; Rex v. Hedge, Id., 240;
Rex v. Martin, Id., 205; Rex v. Cheafor, 2 Den. & P.,
361; 5 Cox Cr., 367; Reg. v. White, 6 Cox Cr. Cas., 213;
7 Id., 183; Reg. v. Smith, Id., 93; Reg. v. Jones, Id., 498;
Reg. v. Morrison, 8 Cox Cr. Cas., 194; Linenden's Case,
1 City H. Rec., 30; Ward v. People, 6 Hill, 144; People
v. Caryl, 12 Wend., 547; Johnson v. People, 4 Den., 364;
Low v. People, 2 Park. Cr., 37; People v. Loomis, 4 Den.,
380; Payne v. People, 6 Johns., 103; People v. Campbell,
4 Park. Cr., 386; People v. Bradley, Id., 245; Corbett v.
State, 31 Ala., 329; State v. Hall, 5 Harring., 492; State
v. Bond, 8 Clarke, 540; Commonwealth v. Rourke, 10
Cush., 397; State v. Taylor, 3 Dutch., 117.
As to what constitutes a sufficient removal or asporta-
tion of the property to constitute larceny, see Rex v.
Coslet, Leach, 271; Rex v. Lapier, Id., 360; Rex v. Far-
rell, Id., 362, n.; Rex v. Simpson, Id., 362, n.; Tobias'
Case, 1 City Hall Rec., 30; Philips' Case, 4 Id., 177;
McDowel's Case, 5 Id., 94; Scott's Case, Id., 169; Reg.
v. Hall, 3 Cox Cr. Cas., 245; Reg. v. Wallis, Id., 67; 10
Law T., 49; Reg. v. Lawrence, 4 Cox Cr. Cas., 438; Reg.
v. Simpson, 6 Id., 422; 24 Law J. (m. c.), 7.
•
As to what is an intent to deprive another of his inte-
rest in the property taken, within the meaning of the
law of larceny, see Reg. v. Wynn, 3 Cox Cr. Cas., 269;
1 Den. C. C. R., 365; Reg. v. Holloway, 3 Cox Cr. Cas.,
241; 1 Den. C. C. R., 370; Reg. v. Beecham, 5 Cox Cr.
Cas., 181; Reg. v. O'Donnell, 7 Id., 337; Reg. v. Pooie,
Id., 373; Reg. v. Guernsey, 1 Fost. & F., 394; Croche-
ron's Case, 1 City Hall Rec., 177; Ellis v. People, 21 How.
Pr., 356; State v. Bond, 8 Clarke, 540; Hamilton v.
State, 35 Miss., 214; State v. Gresser, 19 Mis., 247; U.
S. v. Durkee, 1 McAll. C. C., 196; Alexander v. State, 12
Tex., 540; Dignowitty v. State, 17 Tex., 521.
For cases upon the distinction between a taking origi-
nally felonious, and which is therefore larceny, and a
possession acquired without intent to steal, and followed
by a wrongful appropriation, see Rex v. Bass, Leach,
212
THE PENAL CODE
Larceny of
lost pro-
perty.
285; Rex v. Chipchase, Id., 805; Rex v. Palmer, Id.,
782; Rex v. Sharpless, Id., 108; Rex v. Aickles, Id., 330;
Rex v. Harvey, Id., 528; Rex v. Charlewood, Id., 756;
Rex v. Pear, Id., 253; Rex v. Tunnard, Id.. 255, n.; Rex
v. Semple, Leach, 470; Rex v. Wilkins, Id., 586; Reg.
v. Cole, 2 Cox Cr. Cas., 340; Reg. v. Thistle, 3 Id., 573;
Reg. v. Hey, 3 Id., 582; Reg. v. Roberts, Id., 74; Reg.
v. Janson, Id., 82; Reg. v. Brockett, 4 Id., 274; Reg. v.
Mattheson, 5 Id., 276; Reg. v. Webb, Id., 154; Reg. v.
Medland, Id., 292; Reg. v. Jones, Id., 156; Reg. v. Pey-
ser, Id., 241; Reg. v. Johnson, Id., 372; Reg. v. Saward,
Id., 295; Reg. v. Riley, 6 Id., 88; Reg. v. Featherstone,
Id., 376; Reg. v. Cornish, Id., 432; 33 Eng. L. & Eq.,
527; Reg. v. Fitch, 7 Cox Cr. Cas., 269; Reg. v. Davis,
2 Jur. (N. S), 478; 36 Eng. L. & Eq., 607; Reg. v.
Wright, 7 Cox Cr. Cas., 413; 4 Jur. (N. S.), 313; Reg.
v. Brown, 36 Eng. L. & Eq., 610; 2 Jur. (N. S.), 192;
Reg. v. Poole, 7 Cox Cr. Cas., 373; Reg. v. Williams, Id.,
355; Reg. v. North, 8 Id., 433; Reg. v. Bramley, Id.,
468; Reg. v. Thompson, 15 Law T., 101; Reg. v. Guern-
sey, 1 Fost. & F., 394; Reg. v. Gillings, Id., 36; Reg. v.
Hooper, Id., 85; Mourey v. Walsh, 8 Cow., 238; Ross v.
People, 5 Hill., 294; Dayton's Case, 2 City H. Rec., 167;
Dow's Case, Id., 129; Lloyd's Case, Id., 132; McClure's
Case, Id., 154; O'Terre's Case, Id., 154; Valentine's Case,
4 Id., 33; Bowen's Case, Id., 46; Langley's Case, Id.,
159; Bartrons' Case, 6 Id., 56; Cochran's Case, Id., 62;
People v. Jackson, 3 Park. Cr., 590; People v. Wood, 2
Id., 22; People v. Call, 1 Den., 120; Nichols v. People,
17 N. Y., 114; People v. Schuyler, 6 Cow., 572; Ennis
v. State, 3 Iowa, 67; Spivey v. State, 26 Ala., 79; Com-
monwealth v. King, 9 Cush., 284; Commonwealth v.
White, 11 Id., 483; Richards v. Commonwealth, 13 Grutt.,
803; Welsh v. People, 17 Ill., 339; Farrell v. People, 16
Id., 506; White v. State, 11 Tex., 469; Watson v. State,
36 Miss., 593.
$585. One who finds lost property under circum-
stances which give him knowledge or means of
inquiry as to the true owner, and who appropriates
such property to his own use, or to the use of
another person who is not entitled thereto, without
having first made such effort to find the owner and
restore the property to him as the circumstances
render reasonable and just, is guilty of larceny.
See Reg. v. Dixon, 36 Eng. L. & Eq., 597: Reg. v. York,
3 Cox Cr. Cas., 181; 18 L. J. (M. C.), 38; Reg. v. Thor-
burn, 3 Cox Cr. Cas., 453; Reg. v. Preston, 5 Id., 390'
OF THE STATE OF NEW YORK.
213
Reg. v. Pierce, 6 Id., 117; Reg. v.. West, Id., 415; Reg.
v. Shea, 7 Id., 147; Reg. v. Dixon, Id., 35; Reg. v. Chris-
topher, 8 Id., 91; Reg. v. Moore, Id., 416; Reg. v. Vincent,
11 Law T., 374; People v. Anderson, 14 Johns., 294;
People v. McGarren, 17 Wend., 460; People v. Swan, 1
Park. Cr., 9; People v. Cogdell, 1 Hill, 94; People v. Kaatz,
3 Park. Cr., 129; State v. McCann, 19 Mis., 249; State v.
Martin, 28 Mis., 530; Pritchett v. State, 2 Sneed, 285;
Tanner's Case, 14 Gratt., 635.
petit
S 586. Larceny is divided into two degrees; the Grand and
first of which is termed grand larceny, the second larceny.
petit larceny.
The use of the terms "grand" and "petit "larceny is
so interwoven with the law of this subject, that it is
expedient to retain them; but a provision describing
them as "degrees" of the offense, is necessary to render
the provisions of section 9 of this Code applicable to this
crime.
ceny defined
S 587. Grand larceny is larceny committed in either Grand lar-
of the following cases:
1. When the property taken is of value exceeding
twenty-five dollars;
2. When such property, although not of value ex-
ceeding twenty-five dollars in value, is taken from
the person of another.
See 2 Rev. Stat., 679, § 63; Laws of 1860, ch. 508, § 33;
Laws of 1862, ch. 374, § 2. The provision of section 3
of the latter statute, that "every person who shall lay
hand upon the person of another, or upon the clothing
upon the person of another, with intent to steal under
such circumstances as shall not amount to an attempt to
rob, or an attempt to commit larceny, shall be deemed
guilty of an assault with intent to steal, and shall be pun-
ished as now provided by law for the punishment of mis-
demeanors," is omitted as unnecessary, as section 307
of this Code makes the assault itself punishable, and no
case can well arise in which the evidence requisite to
support an indictment for an assault with intent to steal
under the act of 1862 would not be enough to sustain a
prosecution for an assault under the provisions of the Code.
$ 588. Larceny in other cases is petit larceny.
Petit lar-
ceny.
$ 589. Grand larceny is punishable by imprison- Punish-
ment in a state prison not exceeding five years.
See 2 Rev. Stat., 679, § 63; and 2 Rev. Stat., 690, § 1.
ment of
grand lar-
ceny.
214
THE PENAL CODE
Punish-
ment of
petit lar-
ceny.
Of grand
larceny
in dwelling
house or
vessel.
S 590. Petit larceny is punishable as a misdemeanor.
By the present law (2 Rev. Stat., 690, § 1), the punish-
ment prescribed for petit larceny, is imprisonment in a
county jail not exceeding six months, or by a fine not
exceeding one hundred dollars, or both. The above sec-
tion involves, therefore, a discretionary power, in the
court, to impose an increased punishment. The change is
suggested with a view to render the system of punishment
prescribed by this Code, as a whole, more simple and har-
monious.
S 591. When it appears upon the trial of an indict-
committed ment for grand larceny that the larceny alleged was
committed in any dwelling house or vessel, the
offender may be punished by imprisonment in a state
prison not exceeding eight years.
Of grand
larceny
committed
in night
See 2 Rev. Stat., 679, § 64.
$ 592. When it appears upon such trial; that such
fomentet larceny was committed by stealing in the night time,
time from from the person of another, the offender may be pun-
ished by imprisonment in a state prison not exceeding
ten years.
the person.
Larceny of
written
2 Rev. Stat., 679, § 65.
S 593. If the thing stolen consists of any evidence
instrument. of debt, or other written instrument, the amount of
money due thereupon, or secured to be paid thereby,
and remaining unsatisfied, or which in any contin-
gency might be collected thereon, or the value of the
property, the title to which is shown thereby, or the
sum which might be recovered in the absence thereof,
as the case may be, shall be deemed the value of the
thing stolen.
The language of our present statute on this subject is
as follows: "If the property stolen consist of any bond,
covenant, note, bill of exchange, draft, order or receipt,
or any other evidence of debt, or of any public security
issued by the United States, or by this state, or of any
instrument whereby any demand, right or obligation shall
be created, increased, released, extinguished or dimin-
ished" (except, &c.), "the money due thereon or secured
thereby, and remaining unsatisfied, or which in any event
or contingency might be collected thereon, or the value
of the property transferred or affected thereby, as the
!
OF THE STATE OF NEW YORK.
215
case may be, shall be deemed the value of the article so
stolen." 2 Rev. Stat., 679, § 66. The commissioners
consider the principle proper to be extended to all
writings affecting rights of property.
Omitted provisions. The provisions of 2 Rev. Stat., 680,
§§ 69 and 70, relative to stealing documents from file or
record in public offices, are omitted here, for the reason
that they are embraced in sections 147 and 148 of this
Code.
passage
S 594. If the thing stolen is any ticket, or other Value of
paper or writing entitling or purporting to entitle the ticket.
holder or proprietor thereof to a passage upon any
railroad, or in any vessel or other public conveyance,
the price at which tickets entitling a person to a like
passage, are usually sold by the proprietors of such
conveyance, shall be deemed the value of such ticket.
See Laws of 1855, ch. 499, §§ 1 and 2.
Lottery Tickets. The Revised Statutes contain a pro-
vision, in substance, that if the property stolen consist of
a ticket in any lottery authorized by the laws of this
state, and is stolen before the drawing of the lottery, the
price paid for the ticket shall be deemed its value; if
stolen after the drawing the amount due and payable to
the holder shall be deemed the value. 2 Rev. Stat., 679,
§ 67. This was proper while the law of the state autho-
rized some kinds of lotteries. But as provisions are
elsewhere reported prohibiting all lotteries (see sections
370-384), and all dealing in lottery tickets within the
state, it seems proper that such tickets should no longer
be recognized as property which can be the subject of
larceny. The provision of the Revised Statutes above
referred to is therefore omitted.
$595. All the provisions of this chapter shall apply
where the property taken is an instrument for the
payment of money, evidence of debt, public security
or passage ticket, completed and ready to be issued
or delivered, although the same has never been issued
or delivered by the makers thereof to any person as a
purchaser or owner.
See Laws of 1855, ch. 499, § 3.
$596. All the provisions of this chapter shall
apply where the thing taken is any fixture or part of
the realty, and is severed at the time of the taking,
Securities
but not yet
completed,
issued, de-
clared pro-
perty.
Severing
and remor
ing a part
of the
clared lar-
realty, de-
ceny.
216
THE PENAL CODE
Stealing
wrecked
in the same manner as if such thing had been severed
by another person at some previous time.
Substituted for 2 Rev. Stat., 679, § 68, which is as fol-
lows: "If any person shall sever from the soil of
another any produce growing thereon of the value of
more than twenty-five dollars, or shall sever from any
building, or from any gate, fence, or other railing or
enclosure, any part thereof, or any material of which it
is formed, of the like value, and shall take and convert
the same to his own use, with the intent to steal the
same, he shall be deemed guilty of larceny in the same
manner, and of the same degree as if the articles so taken
had been severed at some previous and different time."
$ 597. Every person who takes away any goods
goods, &c. from any stranded vessel, or any goods cast by the
sea upon the land, or found in any bay or creek, or
who knowingly becomes possessed of any such, and
does not deliver the same, within forty-eight hours
thereafter, to the sheriff or one of the coroners or
wreck masters of the county where the same were
found, is guilty of a misdemeanor.
Receiving
stolen pro-
perty.
Fraudulent
consump-
tion of illu-
Rep. Pol. Code, § 304.
S 598. Every person who buys or receives, in any
manner, whether upon any consideration or not, any
personal property of any value whatsoever, that has
been stolen from any other, knowing the same to have
been stolen, is punishable by imprisonment in a state
prison not exceeding five years, or in the county jail
not exceeding six months, or by a fine not exceeding
two hundred and fifty dollars, or by both such fine
and imprisonment.
2 Rev. Stat., 680, § 71. This provision of the Revised
Statutes is immediately followed by a section as follows:
"In any indictment for any offense specified in the last
section, it shall not be necessary to aver, nor on the trial
thereof to prove, that the principal who stole such pro-
perty has been convicted." 2 Rev. Stat., 680, § 72. This
provision is here omitted merely as not being within the
scope of the Penal Code. The principle embodied is un-
questionable, and the section should be transferred to the
Code of Criminal Procedure, to follow section 312.
$599. Every person who, with intent to defraud,
makes or causes to be made any pipe or other instru-
OF THE STATE OF NEW YORK.
217
gas.
ment or contrivance, and connects the same, or causes minating
it to be connected with any pipe laid for conducting
illuminating gas, so as to conduct gas to a point
where the same may be consumed without its passing
through the meter provided for registering the
quantity consumed, or in any other manner so as to
evade paying therefor, and every person who with
like intent injures or alters any gas meter, or obstructs
its action, is guilty of a misdemeanor.
See Laws of 1854, ch. 109, § 1; Laws of 1859, ch.
311, § 11; Reg. v. White, 6 Cox. Cr. Cas., 213.
committed
out of this
state.
$ 600. Every person who, in any other state or Larceny
country, steals the property of another or receives such
property knowing it to have been stolen, and brings
the same into this state, may be convicted and pun-
ished in the same manner as if such larceny or re-
ceiving had been committed in this state; and such
offense may be charged to have been committed in
any town or city into or through which such stolen
property has been brought.
2 Rev. Stat., 698, § 4; Stat. 24 and 26 Vict., ch.
96, 114.
CHAPTER V.
EMBEZZLEMENT.
SECTION 601. "Embezzlement" defined.
602. When officer, &c., of any association, guilty of embezzle-
ment.
603. When carrier, or other person having property for trans-
portation for hire, guilty of embezzlement.
604. When trustee, banker, &c., guilty of embezzlement.
605. When bailee guilty of embezzlement.
606. When clerk or servant guilty of embezzlement.
607. Distinct act of taking, not necessary to constitute embez-
zlement.
608. Evidence of debt undelivered, may be subject of embez-
zlemeut.
609. Claim of title a ground of defense.
610. Intent to restore the property is no defense.
611. But actual restoration is a ground for mitigation of pun-
ishment.
612. Punishment for embezzlement.
28
218
THE PENAL CODE
"Embezzle-
ment" de-
fined.
When offi-
cer, &c.,
of any
association,
guilty of
embezzle-
ment.
When car-
rier, or
other per-
son, having
property
for trans-
portation
for hire,
guilty of
embozzle-
ment.
When
trustee,
banker, &c.
&c., guilty
of embez-
zlement.
When
bailee
guilty of
§ 601. Embezzlement is the fraudulent appropria-
tion of property by a person to whom it has been
entrusted.
As to the distinctions between robbery, larceny, em-
bezzlement and extortion, see notes to sections 280 and
584.
$ 602. If any person, being an officer, director,
trustee, clerk, servant or agent of any association,
society or corporation (public or private), fraudulently
appropriates to any use or purpose not in the due and
lawful execution of his trust, any property which he
has in his possession or under his control in virtue of
his trust, or secretes it with a fraudulent intent to
appropriate it to such use or purpose, he is guilty of
embezzlement.
This chapter embodies a considerable extension of our
existing law relative to embezzlement. Several of the
provisions reported are founded upon, or suggested by
those of the recent English statutes, 24 and 25 Vict., ch. 96.
S 603. If any carrier or other person having under
his control personal property for the purpose of trans-
portation for hire, fraudulently appropriates it to any
use or purpose inconsistent with the safe keeping of
such property and its transportation according to his
trust, he is guilty of embezzlement, whether he has
broken the package in which such property is con-
tained, or has otherwise separated the items thereof,
or not.
S 604. If any person, being a trustee, banker, mer-
chant, broker, attorney, agent, assignee in trust,
executor, administrator or collector, or being other-
wise entrusted with or having in his control property
for the use of any other person, or for any public or
benevolent purpose, fraudulently appropriates it to
any use or purpose not in the due and lawful execu-
tion of his trust, or secretes it with a fraudulent
intent to appropriate it to such use or purpose, he is
guilty of embezzlement.
$ 605. If any person being entrusted with any
property as bailee, or with any power of attorney for
1
OF THE STATE OF NEW YORK.
219
ment.
the sale or transfer thereof, fraudulently converts the embezzle-
same or the proceeds thereof to his own use, or
secretes it or them with a fraudulent intent to con-
vert to his own use, he is guilty of embezzlement,
whether he has broken the package or otherwise
determined the bailment or not.
$ 606. If any clerk or servant of any private person
or copartnership or corporation (except apprentices
and persons within the age of eighteen years), fraudu-
lently appropriates to his own use, or secretes with a
fraudulent intent to appropriate to his own use, any
property of any other person which has come into his
control or care by virtue of his employment as such
clerk or servant, he is guilty of embezzlement.
See 2 Rev. Stat., 678, § 59.
When clerk,
or servant
guilty of
embezzle-
ment.
Distinct act
not con-
of taking,
neces-
sary to
$ 607. A distinct act of taking is not necessary to
constitute embezzlement; but any fraudulent appro-
priation, conversion or use of the property, coming statement
within the above prohibitions, is sufficient.
People v. Dalton, 15 Wend., 581.
$ 608. Any evidence of debt, negotiable by delivery
only, and actually executed, is equally the subject of
embezzlement, whether it has been delivered or issued
as a valid instrument or not.
2 Rev. Stat., 678, § 60.
S 609. Upon any indictment for embezzlement it is
a sufficient defense that the property was appropriated
openly and avowedly, and under a claim of title pre-
ferred in good faith, even though such claim is unten-
able. But this provision shall not excuse the reten-
tion of the property of another to offset or pay
demands held against him.
§ 610. The fact that the accused intended to restore
the property embezzled, is no ground of defense, or
of mitigation of punishment, if it has not been
restored before an information has been laid before a
magistrate, charging the commission of the offense.
bezzlement
Evidence of
livered.
debt, unde-
may be sub-
ject of em-
bezzlement.
Claim of
title a
ground of
defense.
Intent to
property, is
restore the
no defense.
220
THE PENAL CODE
But actual
restoration
$611. Whenever it is made to appear that prior to
18 and any information laid before a magistrate, charging
tion of pun- the commission of embezzlement, the person accused
for mitiga-
ishment.
Punish-
ment for
embezzle-
ment.
"Extor-
tion" de.
fined.
What
threats
voluntarily and actually restored or tendered restora-
tion of the property alleged to have been embezzled,
or any part thereof, such fact is not a ground of de-
fense to the indictment, but it authorizes the court to
mitigate punishment in its discretion.
S 612. Every person guilty of embezzlement is pun-
ishable in the manner prescribed for feloniously steal-
ing property of the value of that embezzled. And
where the property embezzled is an evidence of debt
or right in action, the sum due upon it, or secured to
be paid by it, shall be taken as its value.
Founded upon 2 Rev. Stat., 678, § 59.
CHAPTER VI.
EXTORTION.
SECTION 613. "Extortion" defined.
614. What threats may constitute extortion.
615. Punishment of extortion in certain cases.
616. Punishment of extortion committed under color of official
right.
617. Obtaining signature by means of threats.
618. Sending threatening letters.
619. Attempts to extort money, or property, by verbal threats.
S 613. Extortion is the obtaining of property from
another, with his consent, induced by a wrongful use
of force or fear, or under color of official right.
See note to section 584; also, as to extortion under
color of official right, People v. Whaley, 6 Cow., 661.
S614. Fear, such as will constitute extortion, may
may consti- be induced by a threat, either:
tute extor-
tion.
1. To do an unlawful injury to the person or pro-
perty of the individual threatened, or to any relative
of his or member of his family; or,
2. To accuse him, or any relative of his or member
of his family, of any crime; or,
OF THE STATE OF NEW YORK.
221
3. To expose, or impute to him, or them, any
deformity or disgrace; or,
4. To expose any secret affecting him or them.
ment of
in certain
S 615. Every person who extorts any money or Punish
other property from another, under circumstances extortion
not amounting to robbery, by means of force or any cases.
threat such as is mentioned in the last section, is
punishable by imprisonment in a state prison not
exceeding five years.
ment of
committed
S 616. Every person who commits any extortion Punish-
under color of official right, in cases for which a dif- extortion
ferent punishment is not prescribed by this Code or
by some of the statutes which it specifies as continu-
ing in force, is guilty of a misdemeanor.
under color
right.
of official
signature
by means
of threats
S 617. Every person, who, by any extortionate Obtaining
means, obtains from another his signature to any
paper or instrument, whereby, if such signature were
freely given, any property would be transferred, or
any debt, demand, charge or right of action created,
is punishable in the same manner as if the actual
delivery of such property or payment of the amount
of such debt, demand, charge or right of action,
were obtained.
threatening
S618. Every person who, with intent to extort Sending
any money or other property from another, sends to letters.
any person any letter or other writing, whether sub-
scribed or not, expressing or implying, or adapted to
imply, any threat, such as is specified in section 614, is
punishable in the same manner as if such money or
property were actually obtained by means of such
threat.
Suggested as a substitute for the provisions of 2 Rev.
Stat., 678, § 58, which are as follows: "Every person
who shall knowingly send or deliver, or shall make, and for
the purpose of being delivered or sent, shall part with
the possession of any letter or writing, with or without a
name subscribed thereto, or signed with a fictitious name,
222
THE PENAL CODE
Attempts
to extort
money, or
property,
by verbal
threats.
or with any letter, mark or other designation, threatening
therein to accuse any person of any crime, or to do any
injury to the person or property of any one, with a view
or intent to extort or gain any money or property of any
description belonging to another, shall, upon conviction,
be adjudged guilty of an attempt to rob, and shall be
punished by imprisonment in a state prison not exceed-
ing five years."
S 619. Every person who unsuccessfully attempts
by means of any verbal threat, such as is specified in
section 614, to extort money or other property from
another, is guilty of a misdemeanor.
Compare 2 Rev. Stat., 690, § 2.
CHAPTER VII.
FALSE PERSONATION, AND CHEATS.
SECTION 620. Falsely personating another.
€21. Receiving property in false character.
622. Personating officers, firemen, and other persons.
623. Obtaining property by false pretenses.
624. Obtaining property for charitable purposes.
625. Obtaining negotiable evidence of debt by false pretenses.
626. Using false check or order for payment of money.
627. Mock auctions.
Falsely
persona-
ting an-
other.
$620. Every person who falsely personates another
and in such assumed character, either
1. Marries or pretends to marry, or to sustain the
marriage relation towards another, with or without
the connivance of such other person; or,
2. Becomes bail or surety for any party in any pro-
ceeding whatever, before any court or officer autho-
rized to take such bail or surety; or,
3. Subscribes, verifies, publishes, acknowledges or
proves, in the name of another person, any written
instrument, with intent that the same may be deliv-
ered or used as true; or,
4. Does any other act, whereby if it were done by
the person falsely personated, he might in any event
↑
OF THE STATE OF NEW YORK.
223
become liable to any suit or prosecution, or to pay
any sum of money, or to incur any charge, forfeiture
or penalty, or whereby any benefit might accrue to
the party personating, or to any other person,
Is punishable by imprisonment in a state prison
not exceeding ten years.
See 2 Rev. Stat., 676, § 48.
property
character.
$ 621. Every person who falsely personates another, Receiving
and in such assumed character receives any money or in false
property, knowing that it is intended to be delivered
to the individual so personated, with intent to convert
the same to his own use, or to that of another person
who is not entitled thereto, is punishable in the same
manner and to the same extent as for larceny of the
money or property so received.
See 2 Rev. Stat., 676, § 50.
ing offi-
cers, fire-
other per-
men and
sons.
$ 622. Every person who falsely personates any Personat-
public officer, civil or military, or any fireman, or any
private individual having special anthority by law to
perform any act affecting the rights or interests of
another, or assumes, without authority, any uniform
or badge by which such are usually distinguished,
and in such assumed character does any act whereby
another person is injured, defrauded, vexed or an-
noyed, is guilty of a misdemeanor.
property
by false
pretenses.
$ 623. Every person who, with intent to cheat or Obtaining
defraud another, designedly, by color or aid of any
false token or writing, or other false pretense, obtains
the signature of any person to any written instru-
ment, or obtains from any person any money or
property, is punishable by imprisonment in a state
prison not exceeding three years, or in a county jail
not exceeding one year, or by a fine not exceeding
three times the value of the money or property so
obtained, or by both such fine and imprisonment.
See 2 Rev. Stat., 677, § 53.
The words by "color or aid of any false token," &c.,
are employed in this and the next section instead of the
224
THE PENAL CODE
1
words "by color of," &c., used in our existing statutes, in
order that it may be clear that cases are embraced in
which a false pretense is used in aid of the fraud, but
such pretense is not the controlling inducement operative
upon the mind of the party defrauded. At present, it is
well settled that a mere assertion may be a "false pre-
tense;" but it must be an untrue assertion of an existing
fact, not a representation or promise as to the future
(People v. Tompkins, 1 Park. Cr., 224,; State v. Magee,
11 Ind., 154; Dillingham v. State, 5 Ohio (N. S.), 280);
and it must be one adapted under the circumstances to
deceive, notwithstanding the use of ordinary care and
caution in giving credence to it (People v. Williams, 4
Hill, 9; People v. Wood, 10 N. Y. Leg. Obs., 61; People
v. Stetson, 4 Barb., 151); and it must have actually in-
fluenced the defrauded person to part with his property;
for if the prosecutor knew the representation to be false
at the time of parting with the property (Reg. v. Mills, 7
Cox Cr. Cas., 263; 40 Eng. L. & Eq., 562); or if he
disregarded the pretense and relied on his own examina-
tion as to the fact in question (Reg. v. Roebuck, 7 Cox
Cr. Cas., 126; 2 Jur. (N. S.), 597; 36 Eng. L. & Eq.,
631), the indictment cannot be sustained. These rules
the Commissioners do not propose to disturb. But it is
further held that though the false pretense need not be
the only inducement influential with the injured party, it
must be the controlling one. (People v. Crissie, 4 Denio,
525; see also People v. Haynes, 11 Wend., 557; People
v. Herrick, 13 Id., 87.) This rule sometimes leads to a
failure of justice; as, for instance, in the late case of Ran-
ney v. People (22 N. Y., 413). In that case the accused
represented to one Hock that he had employment for him
at a distance in traveling to collect money and do other
business; and he promised to give him certain wages
therefor, upon condition that Hock should deposit with
the accused one hundred dollars as security for his faith-
ful performance of duty. It was held that, although the
representation and promise were false and fraudulent, an
indictment could not be sustained. "There must be,"
say the court, "a direct and positive false assertion as to
some existing matter by which the victim is induced to
part with his money or property. In this case the ma-
terial thing was the promise of the accused to employ
the person defrauded and to pay him for his services.
There was a statement, it is true, that the prisoner had
employment which he could give to Hock; but this was
obviously of no importance without the contract which
was made. The false representation complained of was,
therefore, essentially promissory in its nature, and this
has never been held to be the foundation of a criminal
charge.
1
OF THE STATE OF NEW YORK.
225
The Commissioners doubt the soundness of this do-
cision, even under the existing law. See Reg. v. Bates
(3 Cox Cr. Cas., 201), where it is held that an indictment
which charges a false pretense of an existing fact calcu-
lated to induce the confidence which led to the prosecu-
tor's parting with his property, though mixed up with
false pretenses as to the prisoner's future conduct, is
sufficient. Where the false pretense is as to the status
of the party at the time, or as to any collateral fact sup-
posed to be then existing, it will equally support an
indictment under the statute. See also Reg. v. Burnsides
(8 Cox Cr. Cas., 370), where the indictment charged that
the prisoner falsely pretended to the prosecutor that a cer-
tain person who lived in a large house down the street, and
had had a daughter married some time back, had been
at him, the prisoner, about some carpet, to wit, about
twelve yards, by which, &c.; whereas no such person
had been at the prisoner about any carpet, nor had any
such person asked the prisoner to procure any piece of
woolen carpet; and the evidence was, that the prisoner
stated to the prosecutor that he wanted some carpeting
for a family in a large house in the village, who had a
daughter lately married, and thereby obtained twenty
yards of carpet from him; and it was held that there was
a sufficient false pretense alleged.
But conceding the decision in Ranney v. People to be
a correct exposition of the Revised Statutes, it calls for
a modification of the law. Under the language employed
in the text, it will be sufficient that the false assertion
cooperated with other influences to induce the prosecutor
to act; that it aided the prisoner to perpetrate the fraud.
The words "money or property
money or property" are substituted in
this and the preceding sections for the words "money,
personal property or other valuable thing," employed in
the existing statutes, as being a briefer expression of
equivalent import; and without intent to change the law
property
charita-
ble pur-
poses.
S 624. Every person who designedly, by color or Obtaining
aid of any false token or writing, or other false pre-for
tense, obtains the signature of any person to any
written instrument, or obtains from any person any
money or property for any alleged charitable or
benevolent purpose whatever, is punishable by im-
prisonment in a state prison not exceeding three
years, or in a county jail not exceeding one year, or
by a fine not exceeding the value of the money or
property so obtained, or by both such fine and im-
prisonment.
See Laws of 1851, ch. 144.
29
226
THE PENAL CODE
Obtaining
negotiable
evidence of
debt by
false pre-
tenses.
Using false
check or
order for
payment of
money.
Mock auc-
tions.
$ 625. If the false token by which any money or
property is obtained in violation of sections 623 and
624 is a promissory note or other negotiable evidence
of debt purporting to be issued by or under the
authority of any banking company or corporation not
in existence, the person guilty of such cheat is pun-
ishable by imprisonment in a state prison not exceed-
ing seven years, instead of by the punishments pre-
scribed by those sections.
See 2 Rev. Stat., 677, § 54.
§ 626. The use of a matured check, or other order
for the payment of money, as a means of obtaining
any signature, money or property, such as is specified
in the last two sections, by a person who knows that
the drawer thereof is not entitled to draw for the sum
specified therein, upon the drawee, is the use of a false
token within the meaning of those sections, although
no representation is made in respect thereto.
As to the necessity of such a provision see Allen's
case, 3 City H. Rec., 118; Conger's case, 4 Id., 65; 1
Wheel. Cr., 448; Van Pelt's case, 1 City H. Rec., 137;
People v. Tompkins, 1 Park. Cr., 224.
S 627. Every person who obtains any money or
property from another, or obtains the signature of
another to any written instrument, the false making
of which would be forgery, by means of any false or
fraudulent sale of property or pretended property by
auction, or by any of the practices known as mock
auctions, is punishable by imprisonment in a state
prison not exceeding three years, or in the county
jail not exceeding one year, or by a fine not exceed-
ing one thousand dollars, or by both such fine and
imprisonment; and in addition thereto he forfeits any
license he may hold to act as an auctioneer, and is
forever disqualified from receiving a license to act as
auctioneer within this state.
See Laws of 1853, ch. 138.
1
OF THE STATE OF NEW YORK.
227
CHAPTER VIII.
FRAUDULENTLY FITTING OUT AND DESTROYING
VESSELS.
SECTION 628. Captain, or other officer, willfully destroying vessel, &c.
629. Other persons willfully destroying vessel, &c.
630. Fitting out or lading any vessel, with intent to wreck the
same.
631. Making false manifest, &c.
S 628. Every captain or other officer or person in
command or charge of any vessel, who within this
state willfully wrecks, sinks, or otherwise injures or
destroys such vessel, or any cargo in such vessel, or
willfully permits the same to be wrecked, sunk, or
otherwise injured or destroyed, with intent to preju-
dice or defraud an insurer or any other person, is
punishable by imprisonment in a state prison for life.
Injuring or destroying vessels upon the high seas, is
provided for by various acts of Congress. See the acts
collected, Brightly's Dig., 209–211. The above section is
therefore limited to acts committed within this state.
Captain, or
cer will-
stroying
other offi-
fully de-
vessel, &c..
sons will-
stroying
S 629. Every person other than such as are embraced Other per-
within the last section, who is guilty of any act fully de-
therein prohibited, is punishable by imprisonment in
a state prison not exceeding ten years and not less than
three.
S 630. Every person guilty of fitting out any ves-
sel, or of lading any cargo on board of any vessel,
with intent to cause or permit the same to be wrecked,
sunk or otherwise injured or destroyed, and thereby
to prejudice or defraud an insurer or any other person,
is punishable by imprisonment in a state prison not
exceeding ten years, and not less than three.
vessel, &c.
Fitting out,
with intent
the same.
or lading
any vessel
to wreck
false mani-
S 631. Every person guilty of preparing, making Making
or subscribing, any false or fraudulent manifest, fest, &c.
invoice, bill of lading, ship's register or protest, with
intent to defraud another, is punishable by imprison-
228
THE PENAL CODE
Destroying
property
insured.
ment in a state prison not exceeding three years, or
by a fine not exceeding one thousand dollars, or both.
The offense of making false evidence to be used in legal
trials or investigations, is covered by sections 165-170.
CHAPTER IX.
FRAUDULENT DESTRUCTION OF PROPERTY INSURED.
SECTION 632. Destroying property insured.
633. Presenting false proofs of loss in support of claim upon
policy of insurance.
$632. Every person who willfully burns, or in any
other manner injures or destroys any property what-
ever which is at the time insured against loss or
damage by fire, or by any other casualty, with intent
to defraud or prejudice the insurer, whether the same
be the property or in the possession of such person or
of any other, is punishable by imprisonment in the
state prison not exceeding seven years, and not less
than four.
Presenting
false proofs
of loss in
support of
Corresponds with the punishment for arson in the third
degree, reported in section 539. See also note to sections
521 and 526.
S 633. Every person who presents or causes to be
presented any false or fraudulent claim, or any proof
claim upon in support of any such claim, upon any contract of
policy of
insurance.
insurance, for the payment of any loss, or who pre
pares, makes or subscribes any account, certificate,
survey, affidavit, proof of loss, or other book, paper or
writing, with intent to present or use the same, or tɔ
allow it to be presented or used in support of any
such claim, is punishable by imprisonment in a state
prison not exceeding three years, or by a fine not
exceeding one thousand dollars, or both.
#
OF THE STATE OF NEW YORK.
229
CHAPTER X.
FALSE WEIGHTS AND MEASURES.
SECTION 634. Using false weights or measures.
635. Selling provisions by false weight or measure.
636. Keeping false weights.
637. False weights and measures authorized to be seized.
638. May be tested by committing magistrate, and destroyed or
delivered to district attorney.
639. Shall be destroyed after conviction of offender.
640. Stamping false weight or tare, on casks or packages.
S 634. Every person who uses any weight or mea-
sure, knowing it to be false, by which use another is
defrauded or otherwise injured, is guilty of a misde-
meanor.
See 2 Rev. Stat., 5, § 32.
S 635. When the property sold by false weight or
measure consists of any description of provisions, the
offense is felony.
1
By "provisions" are intended bread, meat, milk and
other articles which form ordinary food.
Using false
measures.
weights or
Selling pro
by false
visions
weight or
measure.
§ 636. Every person who retains in his possession Keeping
any weight or measure, knowing it to be false, unless weights.
it appears beyond a reasonable doubt that it was so
retained without intent to use it, or permit it to be
used in violation of the last section, is guilty of a
misdemeanor.
False
and mea-
weights
sures
authorized
S 637. Every person who is authorized or enjoined
by law to arrest another person for a violation of
sections 634, 635 and 636, is equally authorized and seized
enjoined to seize any false weights or measures found
in the possession of the person so arrested, and to
deliver the same to the magistrate before whom the
person so arrested is required to be taken.
S 638. The magistrate to whom any weight or
measure is delivered pursuant to the last section,
May be
tested by
commit
230
THE PENAL CODE
trate, and
destroyed,
or deli-
vered to
district
attorney.
ting magis- shall, upon the examination of the accused, or if
the examination is delayed or prevented, without
awaiting such examination, cause the same to be
tested by comparison with standards conformable to
law; and if he finds it to be false, he shall cause it
to be destroyed, or to be delivered to the district
attorney of the county in which the accused is liable
to indictment or trial, as the interests of justice in his
judgment require.
Shall be
destroyed
after con-
viction of
offender.
Stamping
false
weight or
tare, on
casks or
packages.
Fraudulent
convey-
ancos.
$639. Upon the conviction of the accused, such
district attorney shall cause any weight or measure
in respect whereof the accused stands convicted, and
which remains in the possession or under the control
of such district attorney, to be destroyed.
$640.
S 640. Every person who knowingly marks or
stamps false or short weight, or false tare on any
cask or package, or knowingly sells or offers for sale
any cask or package so marked, is guilty of a misde-
meanor.
Rep. Pol. Code, § 704.
CHAPTER XI.
FRAUDULENT INSOLVENCIES BY INDIVIDUALS.
SECTION 641. Fraudulent conveyances.
642. Fraudulent removal of property to prevent levy.
643. Making assignments with preferences by insolvents, pro-
hibited.
644. Frauds in procuring discharge in insolvency.
S 641. Every person who, being a party to any con
veyance or assignment of any real or personal prop-
erty, or of any interest therein, made or created with
intent to defraud prior or subsequent purchasers, or
to hinder, delay or defraud creditors or other persons,
and every person being privy to or knowing of such
conveyance, assignment or charge, who willfully puts
the same in use as having been made in good faith.
is guilty of a misdemeanor.
See 2 Rev. Stat., 690, § 3.
OF THE STATE OF NEW YORK.
231
removal of
property to
prevent
levy.
S 642. Every person who removes any of his pro- Fraudulent
perty out of any county, with intent to prevent the
same from being levied upon by any execution or
attachment, or who secretes, assigns, conveys or
otherwise disposes of any of his property, with intent
to defraud any creditor, or to prevent such property
being made liable for the payment of his debts, and
every person who receives any such property with
such intent, is guilty of a misdemeanor.
See 2 Rev. Stat., 51, § 26.
assign-
ments with
ins
by insol-
vents pro-
hibited.
S 643. Every person who, knowing that his property Making
is insufficient for the payment of all his lawful debts,
assigns, transfers or delivers any property for the
benefit of any creditor, or creditors, upon any trust
or condition, that any creditor shall receive a prefer-
ence or priority over any other, except in the cases in
which such preference is expressly allowed to be given
by law, or with intent to create such preference or
priority, is guilty of a misdemeanor.
The adoption of the above section involves, of course,
the abrogation of the right, so long recognized in this
state, of making preferential assignments. At the time
when the provisions of the Draft Civil Code, upon assign-
ments for the benefit of creditors, were in course of com-
pilation, the commissioners were not prepared to recom-
mend so great a change in the existing law, without
further deliberation and a fuller examination of the evils
of the existing practice of assignments, than the time
then at their command admitted. They, therefore, at
that time presented a system of sections adapted to ex-
press the existing law of this state upon the subject, and
suitable for enactment in case the legislature considered
it best to adhere to the present system. They now,
however, recommend that the right of a confessed insol-
vent debtor to make an assignment with preferences be
abrogated, and that an order of priority in the payment of
debts in cases of insolvency, suited as far as possible to
the common sense of justice of the community, and inde-
pendent of the choice of the individual debtor, be sub-
stituted.
The details of the system proper to be adopted for the
distribution of an insolvent's property, if this recommen-
dation should be approved, would be out of place in the
Penal Code. The revision of the Civil Code will afford
the proper opportunity for considering those details. In
232
THE PENAL CODE
general, the rule of pro rata distribution, receives the
common approval, on the principle that "equality is
equity." The custom of merchants to recognize certain
descriptions of debts, cash loans, trust funds, &c., as
confidential debts entitled to a preference over those
arising upon ordinary business transactions, ought not,
however, to be overlooked. Debts resting in judgment
may perhaps be properly preferred to open demands.
Debts infected with usury, or otherwise invalid, may,
with even greater propriety, be postponed to all other
classes. The act of congress of 1799 (ch. 128, § 65), re-
quires that a priority shall be given to the United States,
in cases where an insolvent has made an assignment for
the benefit of his creditors. Reserving these details for
future consideration, it is only necessary here to suggest
a penal provision for an attempt to create unlawful
preferences in an assignment, and to call the attention of
the legislature to the steady and remarkable progress of
the jurisprudence of this state, in a direction tending
always towards restriction of the privilege of preferential
assignments within narrower and narrower bounds; and
to the evidence to be derived from the whole course of
our decisions and legislation upon the subject, that the
privilege itself, as usually exercised, creates opportunities
for fraud and temptations to litigation which form a
sufficient reason why it should be abrogated.
The earlier adjudications of our courts abound in recog-
nitions of the right of a debtor, although insolvent, to
prefer lawful debts at discretion. Jackson v. Brownell, 3
Cai., 222; McMenomy v. Ferrers, 3 Johns., 71; Wilkes
v. Ferris, 5 Id., 335; Hyslop v. Clarke, 14 Id., 458; Mur-
ray v. Riggs, 15 Id., 571; Hendricks v. Robinson, 2
Johns. Ch., 283, affd, 17 Johns., 438; McMenomy v.
Roosevelt, 3 Johns. Ch., 446; Nicoll v. Mumford, 4 Id.,
522; Williams v. Brown, 4 Id., 682; Wilder v. Winne,
Cow., 284; Wintringham v. La Foy, 7 Id., 735; Jackson
v. Cornell, 1 Sand. Ch., 438; Cunningham v. Freeborn, 11
Wend., 241.
The later periods of our legal history abound in
decisions pointing out and endeavoring to remedy frauds
to which this privilege has given rise. The following is
a brief review of the leading restrictions which have been
imposed:
1. Moneyed corporations and limited partnerships have
been prohibited by statute from making assignments with
preferences. 1 Rev. Stat., 591, § 9; Id., 766, §§ 20, 21.
This prohibition is held to apply to associations organ-
ized under the general banking law, and to forbid even
an assignment to a single creditor in payment of his par-
ticular demand. Robinson v. Bank of Attica, 21 N. Y.,
406. Whether corporations are left at liberty to make
OF THE STATE OF NEW YORK.
233
assignments without preference, is disputed. See De
Ruyter v. St. Peter's Church, 3 N. Y., 238; Hurlbert v.
Carter, 21 Barb., 221; Bowery Bank case, 5 Abb. Pr.,
415; Loring v. U. S. Vulcanized Gutta Percha & B. Co.,
36 Barb., 329, though the better opinion, probably, is
that they are. An infant is incompetent to assign;
because an assignment must be absolute, while an infant's
act is defeasible on becoming of age. Fox v. Heath, 21
How. Pr., 384.
2. Under the former bankrupt laws an assignment
with preferences was held to be a fraud upon creditors,
if made in contemplation of proceedings for a discharge
in bankruptcy. Ogden v. Jackson, 1 Johns., 370; Phoe-
nix v. Ingraham, 5 Id., 412; Hastings v. Belknap, 1 Den.,
190; Freeman v. Denning, 3 Sandf. Ch., 327. A similar
rule has obtained with respect to assignments—although
without preferences-made pending proceedings to com-
pel the debtor to make an assignment, instituted under
the non-imprisonment act of 1831. Spear v. Wardell, 1
Comst., 144; Hall v. Kellogg, 2 Kern, 325; Wood v.
Boland, 8 Paige, 556. And one who has made an assign-
ment with preferences is debarred from a discharge under
the insolvent act. 2 Rev. Stat., 20, § 24.
..
3. After some dispute it has been settled that a general
assignee for the benefit of creditors stands in no better
position, and has no higher rights in respect to enforcing
choses in action transferred by the assignment, than those
of his assignor. He is not to be regarded as a purchaser
for a valuable consideration. Matter of Howe, 1 Paige,
125; Mead v. Phillips, 1 Sandf. Ch., 83; Marine and
Fire Ins. Bank of Georgia v. Jauncey, 1 Barb., 486;
Leger v. Bonaffe, 2 Barb., 475; Warren v. Fenn, 28 Id.,
333; Van Heusen v. Radcliff, 17 Id., 580; Bliss v. Cot-
tle, 32 Barb., 322; Reed v. Sands, 37 Id., 185; Maas v.
Goodman, 2 Hill, 275; Schieffelin v. Hawkins, 14 Abbott's
Pr., 112. Thus he takes evidences of debt subject to
any offset which existed against his assignor (Chance v.
Isaacs, 5 Paige, 592; Maas v. Goodman, 2 Hilt., 275) and
merchandise subject to any right of stoppage in transit
(Harris v. Hunt, 6 Duer, 606; Harris v. Pratt, 17 N. Y.,
249), or to any vendor's lien (Haggerty v. Palmer, 6
Johns. Ch., 437), which might have been enforced against
his assignor. And he cannot impeach previous transfers
of property made by his assignor which were binding
upon the latter, although they may be voidable for fraud
at the instance of creditors. Van Heusen v. Radcliff, 17
N. Y., 580; Brownell v. Curtis, 10 Paige, 210; Storm
v. Davenport, 1 Sandf. Ch., 135; Osborne v. Moss, 7
Johns., 161; Averill v. Loucks, 6 Barb., 470; Mills v
Argall, 6 Paige, 577, with which compare Bayard v. Hoff-
man, 4 Johns. Ch., 450.
30
234
THE PENAL CODE
:
4. Any clauses in an assignment which confer any
power or privilege upon the assignee inconsistent with
the simple duty of converting the assets promptly into
cash, and distributing it among the creditors, or which
give him a compensation or advantage therein not
allowed by law, operate to defraud creditors, and are
therefore held to render the assignment void. Upon this
ground assignments have been condemned in several
cases;-for instance, for giving the assignee power to
name his successor (Planch v. Schermerhorn, 3 Barb. Ch.,
644); for giving him an extended time within which to
perform his duty of sale and payment (Woodburne v.
Mosher, 9 Barb., 255; D'Ivernois v. Leavitt, 23 Barb.,
63; compare Bellows v. Partridge, 19 Barb., 176); for pro-
viding in effect that he should not be personally liable for
losses resulting from a mere want of ordinary diligence
(Litchfield v. White, 3 Seld., 438; Olmstead v. Herrick, 1
E. D. Smith, 310; with which compare Van Nest v. Yoe,
1 Sandf. Ch., 4; Jacobs v. Allen, 18 Barb., 549); for pro-
viding a compensation beyond that allowed by law (Nich-
ols v. McEwen, 17 N. Y., 22); and for enabling him to vary
the order of preferences. Barnum v. Hempstead, 7 Paige,
568; Boardman v. Halliday, 10 Id., 223; Strong v. Skin-
ner, 4 Burb., 546.
But clauses which merely express in terms, powers or
rights which the law would confer upon the assignee,
were they not expressed;—such as a provision that he may
omploy agents (Mann v. Whitbeck, 17 Barb., 388; Van
Dine v. Willett, 24 How. Pr., 206); that he may advertise
for demands, and pay those presented within a certain
time (Ward v. Tingley, 4 Sandf. Ch., 476); that he may
pay insurance premiums, and mortgage interest upon the
property (Whitney v. Krows, 11 Barb., 198); or rent and
taxes (Van Dine v. Willett, 24 How. Pr., 206, and 38
Barb., 319); or a provision for his compensation which
allows of its being adjusted at a sum within his legal
commissions (Keteltas v. Wilson, 36 Barb., 298; 23 How.
Pr., 69; Halstead v. Gordon, 34 Barb., 422; Campbell v.
Woodworth, 33 Barb., 425; 24 N. Y., 304); or directions
as to sale or distribution which leave him at liberty to
comply with the requirements of the law (Wilson v. Rob-
ertson, 21 N. Y., 589; 19 How. Pr., 350; Ogden v. Peters,
Id., 23; Griffin v. Marquadt, Id., 221; Jessup v. Hulse,
Id., 168; Stern v. Fisher, 32 Barb., 198; Halstead v. Gor-
don, 34 Barb., 422);—are unobjectionable. See also, Brig-
ham v. Tillinghast, 15 Barb., 618; Dow v. Platner, 16 N.
Y., 562; Bellows v. Partridge, 19 Barb., 176.
5. Ingenuity has been frequently exerted to prepare
assignments in such a form as should secure some ulti-
mate surplus, or other benefit or advantage, to the assignor.
Assignments upon any trust which operates in this man-
1
OF THE STATE OF NEW YORK.
235
ner have been, from an early period, declared void by
statute. 1 Rev. Stat., 135, § 1. The application of this
statute has been often invoked to defeat endeavors of
insolvents to place property out of the reach of their
creditors, with a view to their own ultimate benefit. The
case of Goodrich v. Downs (6 Hill, 438,) was upon this
subject. The assignment drawn in question in that case
directed the assignees to pay certain specified creditors,
making no provision for others, and to pay the surplus,
any, to the assignor. It was held that such an assign-
ment was void upon its face; as operating to put a part of
the debtor's property out of the reach of creditors for his
own benefit; and that as the statute declares that in
such a case the conveyance shall be void, the void trust
as to the surplus avoided the whole deed. And it could not
be aided by extrinsic proof that there would be no surplus.
The parties having expressly provided for a surplus, were
not at liberty to say they did not contemplate one. To
the same effect is Strong v. Skinner, 4 Barb., 456. See,
however, a disapproval of the grounds of decision in Good-
rich v. Downs, in Curtis 2. Leavitt, 15 N. Y., 9, 114.
In Goodrich v. Downs the property assigned was per-
sonal; in Barney v. Griffin, decided in the court of
appeals in 1849 (2 Comst., 365), similar principles were
established with reference to assignments of real pro-
perty. It was there determined that an assignment of a
debtor's entire property, in trust to pay certain specified
creditors, and, without making any provision for others,
to repay the residue to the assignor, is void, for fraud
upon creditors not provided for; inasmuch as the property
is placed beyond the reach of their executions, in the
hands of men not accountable to them, and upon a trust
in part for the benefit of the debtor. And the defect
cannot be aided by proof there will be no surplus. Sub-
stantially the same view is taken in Leitch v. Hollister
(4 Comst., 211), Lansing v. Woodruff (1 Sandf. ch. 43),
and Clark v. Dowlings (1 Hill & D. Supp., 105); and the
rule has even been applied in a case where it was thought
that the resulting trust was not intended, but arose from
an inadvertent omission in drawing the assignment
Hooper v. Tuckerman (3 Sandf., 311); and in cases where
the assignment was of partnership property, and the
resulting trust arose .only indirectly through the indi-
vidual interest of partners in the residue of the firm
assets. (Johnson v. Gardner, 4 N. Y. Leg. Obs., 424; Col-
lomb v. Caldwell, 16 N. Y., 484; Wilson v. Robertson,
21 N. Y., 387; 19 How. Fr., 350; Smith v. Howard, 20
How. Pr., 121); with which compare Collumb v. Read
(24 N. Y., 405); compare, however, upon this subject,
Wilkes v. Tenis ( 5 Johns., 335), and remarks upon Bar-
ney v. Griffin (cited supra), in Curtis v. Leavitt (15 N. Y.,
118, 176).
236
THE PENAL CODE
Some cases, indeed, are recognized as not within the
rule avoiding an assignment for expressing a trust to pay
a surplus to the assignor. One class is, cases in which pro-
perty is assigned direct to a particular creditor, as a means
of securing payment of his demand. Such an assignment
being in the nature of a mortgage for the particular
demand, a trust to pay the surplus to the assignor, is
held to result from the nature of the instrument; and
whether it is stated in the instrument or left to implica-
tion, is immaterial. (Leitch v. Hollister, 4 Comst., 24;
Hendricks v. Robinson, 3 Johns. Ch., 284, affirmed 17
Johns., 438; Dunham v. Whitehead, 21 N. Y., 131;
McLelland v. Remsen, 36 Barb., 622; 14 Abbott's Pr.,
381; 23 How. Pr., 175.)
Another class embraces cases in which the surplus
directed to be returned is only such as may remain after
paying all creditors in full. Where a surplus results
under such circumstances, the law implies a trust to
repay it to the assignor. Hence a direction to repay a
surplus in an assignment will not avoid it, if the instru-
ment in effect empowers the assignor first to pay all
creditors in full, in case assets are sufficient. (Win-
tringham v. Lafroy, 7 Cow., 735; Van Rossum v. Walker,
11 Barb., 237; Ely v. Cook, 18 Id., 612; Taylor v. Ste-
vens, 7 How. Pr., 415.)
A third class comprises cases in which particular
items of property are excepted from the assignment. As
these remain open to the reach of creditors in the same
manner as they were before the assignment was made,
the reservation does not operate to delay them. (Carpen-
ter v. Underwood, 19 N. Y., 520.)
A reservation of a specific sum to the assignor for the
support of his family, was thought, in an early case, to
constitute no objection to the instrument, as to the resi-
due. (Murray v. Riggs, 15 Johns., 535.) Later, it has been
held to render the whole assignment void, as operating
to put property of the assignor out of the reach of his
creditors, and for his own enjoyment. (Mackie v. Cairns.
5 Cow., 547.) The same principle has been held appli-
cable where an assignment provided for payment of a
sum which the assignor had applied for as a loan, and
had reason to believe was upon the way to him, but
which he had not yet received. As such sum would not
belong to the assigned assets, but must be repaid from
them, the effect was an indirect reservation of the sum,
from the estate, for the individual benefit of the assignor.
(Sheldon v. Dodge, 4 Den., 217; see, also, to nearly the
same effect, Barnum v. Hempstead, 7 Paige, 568.)
6. Provisions have often been inserted in assignments
tending to enable the debtor to exercise a future prefer-
ence between his creditors. These are held to avoid the
instrument. Examples are, where the assignment pre.
1
OF THE STATE OF NEW YORK.
237
ferred the creditors who should be named in a schedule
to be thereafter made out and affixed (Averill v. Loucks,
6 Barb., 470); where it directed that, in a certain contin-
gency, debts enumerated in a later class should be preferred
to those mentioned in an earlier one (Sheldon v. Dodge, 4
Den., 217); and where it directed that if certain creditors
should refuse to release the assignor then such creditors
should be preferred to them as tlie assignors should
appoint. (Hyslop v. Clarke, 14 Johns., 458.)
7. The endeavor to empower an assignee to impose
conditions upon creditors, before paying their demands,
has frequently been held ground for avoiding the assign-
ment; as where certain creditors are directed to be pre-
ferred upon the condition that they execute releases of
their demands (Hyslop v. Clarke, 14 Johns., 458; Austin
v. Bell, 20 Id., 442; Grover v. Wakeman, 11 Wend., 187;
Armstrong v. Byrne, 1 Edw., 79; Lentilhon v. Moffat, 1
Edw. Ch., 451; Searing v. Brincherhoff, 5 Johns. Ch.,
329; Hone v. Henriquez, 13 Wend., 240; Gasherie v.
Apple, 14 Abbott's Pr., 64); or where the assignment
authorizes a surplus to be divided among those who will
execute a release. (Grover v. Wakeman, 11 Wend., 187;
Mills v. Levy, 2 Edw., 183; but see De Caters v. De
Chaumont, 2 Paige, 490; Hastings v. Belknap, 1 Den.,
190. See also, upon the same general principle, Berry v.
Riley, 2 Barb., 307; Bellows v. Partridge, 19 Barb., 176;
Oliver Lee & Co's. Bank v. Talcott, 19 N. Y., 146; Bank
of Silver Creek v. Talcott, 22 Barb., 550; Jewett v. Wood-
ward, 1 Edw., 195; Van Nest v. Yoe, 1 Sandf. Ch., 4;
Spaulding v. Strong, 36 Barb., 310.)
8. Directions to an assignee to deal with the estate in
a given way, in order to increase the amount to be
realized from it, are another class of frauds upon credi-
tors; that is, they are held to be fraudulent and to avoid
the assignment wherever they operate to delay a sale.
At one period their tendency was not fully perceived.
Therefore, where in an assignment made by proprietors
of a foundry, the trustee was directed to conduct and
carry on the establishment for the benefit of the creditors,
to sell the manufactured articles, to work up and sell
those unmanufactured, and, in general, to sell all the
property as soon as it could conveniently be done without
a sacrifice, it was held that these directions were not
necessarily fraudulent. But this view has been disap-
proved by the later cases; which go upon the general
ground that the creditors have a right to a prompt sale
and distribution of proceeds, whether a sacrifice is the
result or not. Without their consent the debtor cannot
carry on his business through the medium of an assignee,
for the purpose of increasing the ultimate fund. He may
direct, in general terms, a sale of the property, and to
what debts and in what order the proceeds shall be
238
THE PENAL CODE
applied; but beyond this he can prescribe no condition
whatever as to the management or disposal of the estate.
(Dunham v. Waterman, 17 N. Y., 9. To the same effect are
Van Nest v. Yoe, 1 Sandf. Ch., 4; 2 N. Y. Leg. Obs., 70;
Schlussel v. Willett, 34 Barb., 615; 12 Abb. Pr., 397; 22
How. Pr., 15.)
9. Akin to the last mentioned provisions are clauses
which empower the assignee to sell upon credit, with a
view thereby to realize a larger price for the assets. As
this necessarily protracts the ultimate distribution until
the term of credit expires, such a sale is held a fraud
upon the right of the creditors to have the assets con-
verted into money, and the money divided without delay
(Rogers v. De Forest, 7 Paige, 272; Barney v. Griffin, 2
Comst., 365; 8 N. Y. Leg. Obs., 68; and 9 Id., 106; Nich-
olson v. Leavitt, 2 Seld., 510; and 6 Id., 591; Burdick
v. Post, 2 Id., 522; Houghton v. Westervelt, Seld. notes,
No. 1, 32; Porter v. Williams, 5 Seld., 142; and 12 Low.
Pr., 107; Lyons v. Platner, 11 N. Y. Leg. Obs., 87.) As
in the case of clauses conferring other powers on the
assignee, so in respect to the terms in which the power to
sell is expressed, if they do not necessarily import dis-
cretionary power to sell upon credit, inconsistent with
the legal duty of his trust. but may he construed as con-
sistent with an immediate conversion into money, the
assignment is not rendered invalid. (Kellogg v. Slauson,
1 Kern., 302; Whitney v. Krows, 11 Barb., 198; South-
worth v. Sheldon, 7 How. Pr., 414; Bellows v. Partridge,
19 Barb., 176; 12 N. Y. Leg. Obs., 219; Clark v. Fuller,
21 Barb., 128: Nichols v. McEwen, Id., 65; Wilson v.
Ferguson, 10 How. Pr., 175; Clapp v. Utley, 16 Id., 384;
Meacham v. Stearns, 9 Paige, 398; Wilson v. Robertson,
21 N. Y., 589; 19 How. Pr., 350; Ogden v. Peters, Id.,
23; Griffin v. Marquadt, Id., 121; Schufeldt v. Aber-
nethy, 2 Duer, 533; 12 N. Y. Leg. Obs., 173; Murphy v.
Bell, 8 How. Pr., 468.) And a clause forbidding the
assignee to sell upon credit, though superfluous, does not
affect the assignment. (Carpenter v. Underwood, 19 N.
Y., 520; Van Rossum v. Walker, 11 Barb., 237; Stern
v. Fisher, 32 Burb., 198.)
10. In addition to the protection thrown around the
rights of creditors by the principles embodied in the ad-
judications abovementioned, it was found necessary, in
1860, for the legislature to interpose in their behalf; and
to enact that assignments shall be in writing and acknow-
ledged and recorded; that the assignor shall deliver to
the county judge a sworn schedule containing an account
of the creditors, stating their residences, the sums due
them respectively, the consideration of each debt, and
any collateral security held for it, and containing also
an inventory of all the debtor's estate, stating incum-
brances upon it, vouchers and securities appertaining to
OF THE STATE OF NEW YORK.
239
it and its value; that the assignee must file a bond with
sureties for the faithful performance of his duty, and that
an accounting may be compelled, in due season, by legal
proceedings for that purpose. (Laws of 1860, ch. 348.)
This act has been deemed directory merely (Evans v.
Chapin, 12 Abbott's Pr., 161; 20 How. Pr., 289; Fair-
child v. Gwynne, 14 Abbott's Pr., 121), at least in so far
as it requires an inventory and bond (Juliand v. Ratlı-
bone, 39 Barb., 97); but it appears to be the better opinion
that a compliance by the assignor with the prerequisites
imposed by the statute to be performed upon his part is
essential to the validity of the instrument. (Fairchild v.
Gwynne, 16 Abbott's Pr., 23, rev'g s. c., supra; Cook v.
Kelley, 14 Id., 466.)
This brief review of the leading authorities in our state
upon the restrictions imposed upon the right of prefer-
ential assignments, indicates what is much more clear
upon a careful perusal of the decisions and statutes, viz.:
that the strong tendency of the rule recognizing a discre-
tionary power in debtors to give preferences, is towards
fraud, and that the whole course of our jurisprudence and
legislation has been steadily to restrict this power within
narrower limits, and give creditors new means of protec-
tion.
The system of restrictions which has thus grown up may
be briefly stated thus: A debtor, if not a moneyed corpora-
tion, nor a member of a limited partnership, nor an infant,
nor a person contemplating proceedings for an insolvent's
discharge, may make an assignment indicating preferences
among his creditors, if the demands preferred are actual,
valid, and honest;-provided that he confers no right or
privilege upon his assignee inconsistent with the simple
duty to sell and divide, nor any compensation exceeding
that awarded by law; that he withholds nothing directly
or indirectly, intentionally or inadvertently, immediately,
or remotely, for himself; that he denotes the preferences
to be made absolutely and finally, neither reserving to
himself, nor giving his assignee a power to modify them,
nor making them dependent upon contingencies; that he
abstains from any attempt to exact or empower his
assignee to exact favor from his creditors, as a condition
of the payment of their dividends; that he authorizes an
immediate conversion of the property into cash, neither
permitting the sale to be deferred to allow the assets to
be nursed into greater value, nor credit to be given in ·
hope of obtaining a higher price; and lastly (which pro-
vision opens a wide field of litigation not touched by the
decisions above reviewed), that there are not in all the
attendant circumstances under which the act is done, in-
dications of an actual intent to hinder, delay or defraud
his creditors; the privilege being moreover allowed to be
exercised only by means of an instrument in writing,
240
THE PENAL CODE
Frauds in
procuring
discharge
in insol-
vency.
acknowledged and recorded, and accompanied by a full
disclosure of both the debit and credit sides of the assign-
or's affairs, and even then only upon the condition that
the assignee shall give bonds for the discharge of his
duty, and stand liable to render account of his proceed-
ings to a legal tribunal. Stated in the books, viewed as
a theory, the privilege seems reasonable, and the guards
against abuse sufficient. But as actually administered, a
system better adapted to tempt the designing and cor-
rupt, to fraud, and to provoke litigation against the well
disposed and the honest, could not easily be devised.
The Commissioners are of opinion that the policy of
permitting insolvents to regulate the distribution of their
estates among their creditors should be abandoned, and
that the order of preference should be prescribed by
law, upon general considerations of justice and sound
policy, instead of being left to be determined by the irre-
sponsible and often capricious or prejudiced judgment,
or fraudulent purposes of the insolvent, or influenced
by the undue solicitation of particular creditors.
The effect of the provision in the text, unless modifiea
by such provisions as have been above suggested, would
be that the property of an insolvent would become a trust
fund to be administered in equity for the equal benefit of
all his (if needed) creditors, as in the case of insolvent
limited partnerships. (Inness v. Lansing, 7 Paige, 583.)
S 644. Every person who, upon making or prose-
cuting any application for a discharge as an insolvent
debtor, either:
1. Fraudulently presents, or authorizes to be pre-
sented on his behalf, such application, in a case in
which it is not authorized by law; or,
2. Makes or presents to any court or officer, in sup-
port of such application, any petition, schedule, book,
account, voucher, or other paper or document, know-
ing the same to contain any false statement; or,
3. Fraudulently makes and exhibits, or alters, ob-
literates or destroys any account or voucher relating
to the condition of his affairs, or any entry or state-
ment in such account or voucher; or,
4. Practices any fraud upon any creditor, with
intent to induce him to petition for, or consent to
such discharge; or,
5. Conspires with or induces any person fraudu-
1
OF THE STATE OF NEW YORK.
241
lently to unite as creditor in any petition for such
discharge, or to practice any fraud in aid thereof,
Is guilty of a misdemeanor.
CHAPTER XII.
FRAUDULENT INSOLVENCIES BY CORPORATIONS, AND
OTHER FRAUDS IN THEIR MANAGEMENT.
SECTION 645. Frauds in subscriptions for stock of corporations.
646. Frauds in procuring organization of corporation, or increase
of capital.
647. Unauthorized use of names in prospectuses, &c.
648. Misconduct of directors of stock corporations.
649. Misconduct of directors of banking corporations.
650. Loans made in violation of last section, not invalid.
651. Sale or hypothecation of bank notes by officer, &c.
652. Officer of bank putting excessive number of its notes in
circulation.
653. Officer or agent of banking corporation, making guarantee
or indorsement, in its behalf, in certain cases.
654. Bank officer overdrawing his account.
655. Omitting to enter receipt of property of corporation in its
books.
656. Destroying or falsifying books or papers of corporation.
657. Officer of corporation publishing false reports of its condition.
658. Officer of corporation refusing to permit an inspection of its
books.
659. Insolvencies of corporations deemed fraudulent, when.
660. Directors participating in fraudulent insolvency, how pun-
ishable.
661. Violation of duty of directors of moneyed corporations.
662. Officer of railroad company contracting debt in its behalf,
exceeding its available means.
663. Debt contracted in violation of last section, not invalid.
664. Director of corporation presumed to have knowledge of its
affairs.
665. Director present at meeting, when presumed to have
assented to proceedings.
666. Director absent from meeting, when presumed to have
assented to proceedings.
667. Foreign corporations.
668. "Director" defined.
S645. Every person who signs the name of a fic-
titious person to any subscription for, or agreement
to take stock in any corporation, existing or proposed;
and every person who signs, to any subscription or
Frauds in
tions for
corpora
subscrip-
stock of
tions.
31
242
THE PENAL CODE
:
Frands in
procuring
organiza
tion of cor-
poration,
agreement, the name of any person, knowing that
such person has not means or does not intend in good
faith to comply with all the terms thereof, or under
any understanding or agreement that the terms of
such subscription or agreement are not to be complied
with or enforced, is guilty of a misdemeanor.
This section, which is new, is intended to reach a
species of fraud frequently practised in the organization
of corporations. See Palmer v. Lawrence, 3 Sandf., 161;
1 Seld., 389.
S646. Every officer, agent or clerk, of any cor-
poration, or of any persons proposing to organize a
corporation, or to increase the capital stock of any
its capital. corporation, who knowingly exhibits any false, forged
or increase
Unauthor-
ized use of
names in
prospec-
tuses, &c.
Miscon-
duct of
directors
of stock
corpora-
tions.
or altered book, paper, voucher, security or other in-
strument of evidence to any public officer or board
authorized by law to examine the organization of
such corporation, or to investigate its affairs, or to
allow an increase of its capital, with intent to deceive
such officer or board in respect thereto, is punishable
by imprisonment in a state prison not exceeding ten
years and not less than three.
See Laws of 1829, ch. 94, § 29.
S 647. Every person who, without being authorized
so to do, subscribes the name of another to, or inserts
the name of another in any prospectus, circular or
other advertisement or announcement of any corpor-
ation or joint stock association existing or intended
to be formed, with intent to permit the same to be
published and thereby to lead persons to believe that
the person whose name is so subscribed is an officer,
agent, member or promoter of such corporation or
association, is guilty of a misdemeanor.
S 648. Every director of any stock corporation,
who concurs in any vote or act of the directors of
such corporation, or any of them, by which it is
intended, either:
1. To make any dividend, except from the surplus
*
OF THE STATE OF NEW YORK.
243
7
profits arising from the business of the corporation,
and in the cases and manner allowed by law; or,
2. To divide, withdraw, or in any manner pay to
the stockholders, or any of them, any part of the
capital stock of the corporation; or to reduce such
capital stock without the consent of the legislature; or,
3. To discount or receive any note or other evi-
dence of debt in payment of any installment actually
called in, and required to be paid, or with the intent
to provide the means of making such payment; or,
4. To receive or discount any note or other evi-
dence of debt with the intent to enable any stock-
holder to withdraw any part of the money paid in by
him, or his stock; or,
5. To apply any portion of the funds of such cor-
poration, except surplus profits, directly or indirectly,
to the purchase of shares of its own stock; or,
6. To receive any such shares in payment or satis-
faction of any debt due to such corporation; or,
7. To receive from any other stock corporation, in
exchange for the shares, notes, bonds, or other evi-
dences of debt of their own corporation, shares of the
capital stock of such other corporation, or notes,
bonds or other evidences of debt issued by such other
corporation,
Is guilty of a misdemeanor.
duct of
directors
corpora-
S 649. Every director of any corporation having Miscon
banking powers, who concurs in any vote or act of
the directors of such corporation, or any of them, by
which it is intended, either:
1. To make any loan, or discount, by which the
whole amount of the loans and discounts of the cor-
poration is made to exceed three times its capital
stock then paid in and actually possessed; or,
2. To make any loan or discount to any director
of such corporation, or upon paper upon which any
such director is responsible, to an amount exceeding
of banking
tions.
244
THE PENAL CODE
:
Loans made
in violation
of last sec-
tion, not
invalid.
Sale, or
hypotheca-
tion of bank
notes, by
officer, &c.
Officer of
bank put-
in the aggregate one-third of the capital stock of such
corporation, then paid in and actually possessed,
Is guilty of a misdemeanor.
The provisions of this and the preceding section are
founded on 1 Rev. Stat., 589, § 1. That section embodies
nine subdivisions, the first seven of which correspond
with those of section 648 in the text, while the eighth
and ninth correspond with those of section 649. The
whole section is, however, as it appears in the Revised
Statutes, limited to moneyed corporations; while the last
two subdivisions are restricted to corporations having
banking powers. In the opinion of the commissioners,
the provisions of the first seven subdivisions should be
extended to all stock corporations; and they have so
framed them; placing in a separate section, confined to
banking corporations, the provisions of subdivisions 8
and 9.
The word "corporation" is substituted for "company,"
in one or two instances, merely for the sake of greater
uniformity of expression.
S 650. Nothing in the last section shall render any
loan made by the directors of any such corporation,
in violation thereof, invalid.
See 2 Rev. Stat., 590, § 1, subd. 9.
S 651. Every officer or agent of any corporation
having banking powers, who sells, or causes or per-
mits to be sold, any bank notes of such corporation,
or pledges or hypothecates, or causes or permits to be
pledged or hypothecated, with any other corporation,
association or individual, any such notes, as a secu-
rity for a loan or for any liability of such corporation,
is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not exceeding five
thousand dollars, or both.
See Laws of 1842 ch. 247, S 10.
S 652. Every officer or agent of any corporation
ting exces having banking powers, who issues or puts in circu-
sive num-
ber of its
notes in
circulation.
lation, or causes or permits to be issued or put in cir-
culation, the bank notes of such corporation to an
amount, which, together with previous issues, leaves in
circulation or outstanding a greater amount of notes
OF THE STATE OF NEW YORK.
245
than such corporation is allowed by law to issue and
circulate, is punishable by imprisonment in a county
jail not exceeding one year, or by a fine not exceed-
ing five thousand dollars, or both.
See Laws of 1842, ch. 247, § 11.
S 653. Every officer or agent of any banking cor-
poration, who makes or delivers any guarantee or
indorsement upon behalf of such corporation, whereby
it may become liable upon any of its discounted notes,
bills or obligations, in any sum beyond the amount
of loans and discounts which such corporation may
legally make, is guilty of a misdemeanor.
See Laws of 1841, ch. 292, § 2.
S654. Every officer, agent, teller or clerk of any
bank, banking association or savings bank, who
knowingly overdraws his account with such bank,
and thereby wrongfully obtains the money, notes or
funds of such bank, is guilty of a misdemeanor.
See Nixon's Dig., L. of N. J., 372, § 4; State v.
Stimson, 4 Zabr., 478.
agent of
corpora
Officer or
banking
tion, mak-
antese-
ment in its
cases.
ing guar-
or
behalf in
certain
Bank of-
drawing his
cer over-
account.
deposits in
banks.
$655. Every officer, agent, teller or clerk of any Receiving
bank, banking association or savings bank, and every solvent
individual banker, or agent, teller or clerk of any
individual banker, who receives any deposits know-
ing that such bank, or association, or banker is insol-
vent, is guilty of a misdemeanor.
$ 656. Every director, officer or agent of any cor-
poration or joint stock association, who knowingly
receives or possesses himself of any property of such
corporation or association, otherwise than in payment
of a just demand, and who, with intent to defraud,
omits to make, or to cause or direct to be made, a
full and true entry thereof, in the books or accounts
of such corporation or association; and every direc-
tor, officer, agent or member of any corporation or
joint stock association, who, with intent to defraud,
destroys, alters, mutilates or falsifies any of the
Frauds in
counts in
corpora-
keeping ac
books of
tions.
246
THE PENAL CODE
books, papers, writings or securities belonging to
such corporation or association, or makes or concurs
in making any false entry, or omits or concurs in
omitting to make any material entry in any book of
accounts, or other record or document kept by such
corporation or association, is punishable by imprison-
ment in a state prison not exceeding ten years, and
not less than three, or by imprisonment in a county
jail not exceeding one year, or by a fine not exceed-
ing five hundred dollars, or by both such fine and
imprisonment.
Officer of
corpora-
tion pub-
lishing
false re-
ports of its
condition.
Officer of
corpora-
mit an
of its books
See Laws of 1829, ch. 94, § 29; and Stat. 24 and
25 Vict, ch. 96, § 82.
S 657. Every director, officer or agent of any cor-
poration or joint stock association, who knowingly
concurs in making or publishing any written report,
exhibit or statement of its affairs or pecuniary con-
dition, containing any material statement which is
false, other than such as are mentioned in sections
646 and 647, is guilty of a misdemeanor.
See Cross v. Sackett, 6 Abbott's Pr. R., 247, aud numc-
rous cases there cited; also, Harper v. Chamberlain, 11
Abbott's Pr., 234.
S 658. Every officer or agent of any corporation
tion to per- having or keeping an office within this state, who
inspection has in his custody or control any book, paper or docu-
ment of such corporation, and who refuses to give to
a stockholder or member of such corporation, law-
fully demanding, during office hours, to inspect or
take a copy of the same, or of any part thereof, a
reasonable opportunity so to do, is guilty of a mis-
demeanor.
Insolven-
cies of cor-
porations
deemed
fraudulent,
when.
See Laws of 1825, ch. 325, § 1; Cotheal v. Brouwer,
1 Seld., 562.
§ 659. Every insolvency of a moneyed corporation
is deemed fraudulent unless its affairs appear, upon
investigation, to have been administered fairly and
legally, and generally with the same care and dili-
9
OF THE STATE OF NEW YORK.
247
gence that agents receiving a compensation for their
services are bound by law to observe.
2 Rev. Stat., 592, § 14.
§ 660. In every case of a fraudulent insolvency of
a moneyed corporation, every director thereof who
participated in such fraud, if no other punishment is
prescribed therefor by this Code, or any of the acts
which are specified as continuing in force, is guilty of
a misdemeanor.
S 661. Every director of any moneyed corporation,
who willfully does any act, as such director, which is
expressly forbidden by law, or willfully omits to per-
form any duty expressly imposed upon him as such
director, by law, the punishment for which act or
omission is not otherwise prescribed by this Code, or
by some of the acts which it specifies as continuing
in force, is guilty of a misdemeanor.
Directors
ting in
participa
fraudulent
insolvency,
how pun
ishable.
Violation
directors of
of duty of
moneyed
corpora-
tions.
railroad
contracting
debt in its
behalf.
exceeding
its avail
able means.
S 662. Every officer, agent or stockholder of any Officer of
railroad company who knowingly assents to or has company
any agency in contracting any debt, by or on behalf
of such company, unauthorized by a special law for
the purpose, the amount of which debt, with other
debts of the company, exceeds its available means for
the payment of its debts, in its possession, under its
control, and belonging to it, at the time such debt is
contracted, including its bona fide and available
stock subscriptions, and exclusive of its real estate, is
guilty of a misdemeanor.
Founded on Laws of 1845, ch. 230; the language of
that act being modified with a view to attain greater
clearness.
S 663. The last section does not affect the validity
of a debt created in violation of its provisions, as
against the company.
Laws of 1845, ch. 230.
S664. Every director of a corporation, or joint
stock association, is deemed to possess such a know-
Debt con
violation of
tracted in
last section
not invalid.
Director of
tion pre-
corpora-
248
THE PENAL CODE
sumed to
have know-
ledge of the affairs of his corporation, as to enable
ledge of its him to determine whether any act, proceeding or
affairs.
Director
present at
meeting,
when pre-
sumed to
have as-
sented to
proceed-
ings.
Director ab-
sent from
meeting,
when pre-
sumed to
have as-
sented to
proceed-
ings.
Foreign
corpora-
tious.
"Director"
dofined.
omission of its directors, is a violation of this chapter.
See 2 Rev. Stat., 592, § 12.
S665. Every director of a corporation, or joint
stock association, who is present at a meeting of
the directors at which any act, proceeding or omis-
sion of such directors, in violation of this chapter
occurs, is deemed to have concurred therein, unless
he at the time causes, or in writing requires, his
dissent therefrom to be entered in the minutes of
the directors.
See 2 Rev. Stat., 592, § 12.
S 666. Every director of a corporation, or joint
stock association, although not present at a meeting
of the directors at which any act, proceeding, or omis-
sion of such directors, in violation of this chapter,
occurs, is deemed to have concurred therein, if
the facts constituting such violation appear on the
record or minutes of the proceedings of the board of
directors, and he remains a director of the same com-
pany for six months thereafter, and does not, within
that time, cause, or in writing require his dissent
from such illegality to be entered in the minutes
of the directors.
See 2 Rev. Stat., 592, § 13.
S 667. It is no defense to a prosecution for a
violation of the provisions of this chapter, that the
corporation was one created by the laws of another
state, government or country, if it was one carrying
on business, or keeping an office therefor, within this
state.
S 668. The term "director," as used in this chapter,
embraces any of the persons having by law the direc-
tion or management of the affairs of a corporation,
by whatever name such persons are described in its
charter, or known by law.
See 2 Rev. Stat., 599, § 53.
•
OF THE STATE OF NEW YORK.
249
CHAPTER XIII.
FRAUDS IN THE SALE OF PASSAGE TICKETS.
SECTION 669. Sale of passage tickets on vessels and railroads, forbidden,
except by agents specially authorized.
670. Sales by authorized agents, restricted.
671. Unauthorized persons forbidden to sell certificates, receipts,
&c., for the purpose of procuring tickets.
672. Punishment for violation of the preceding sections.
673. Conspiring to sell passage tickets in violation of law.
674. Conspirators may be indicted, notwithstanding object of
conspiracy has been accomplished.
675. Offices kept for unlawful sale of passage tickets, declared
disorderly houses.
.676. Owners, pursers, &c., allowed to sell tickets.
677. Station masters, conductors, &c., allowed to sell tickets.
678. What must be stated in passage ticket.
679. Sale of tickets not filled out as required in last section, a
felony.
680. Requisites of indictment.
681. "
Company" defined.
682. Foreign railroad companies.
$669. No person except the persons designated in
section 676 shall issue or sell or offer to sell, within
this state, any passage ticket, or any instrument
giving or purporting to give any right, either
absolutely or upon any condition or contingency, to
any passage or conveyance upon any vessel or rail-
road train, unless he is an authorized agent of the
owners or consignees of such vessel, or of the com-
pany running such train; and no person is deemed
an authorized agent of such owners, consignees or
company, within the meaning of this chapter, unless
he has been by them duly appointed by an autho-
rity in writing, and which designates the name of
the company, line, vessel or railroad for which such
person is authorized to act as agent, together with
the street and number of the street, and the city,
Sale of
vessels
passage
tickets on
and rail-
roads for-
except by
cially au
bidden,
agents spe-
thorized.
32
250
THE PENAL CODE
Sales by
authorized
agents, re-
stricted.
Unauthor-
ized per-
sons forbid-
den to sell
certificates,
receipts,
town or village in which his office shall be kept, for
the sale of passage tickets.
Founded upon Laws of 1860, ch. 103, § 1. The provi
sions of this chapter are substantially a re-enactment of the
act of 1860, with such modifications of language as aro
deemed suitable to incorporate the sections of the act of
1860, with those of the Penal Code. The provisions are
extended to railroad tickets, the sale of which offers op-
portunities for frauds, corresponding with those in the sale
of tickets on vessels. The regulations comprised in the
act are new in our law; and the subject has been recently
and fully treated by the legislature. The Commissioners
have, therefore, not thought it necessary to propose any
other substantial changes.
$ 670. No person except the persons designated in
section 676 shall, within this state, ask, take or re-
ceive any money or valuable thing as a consideration
for any passage or conveyance upon any vessel or rail-
road train, or for the procurement of any ticket or
instrument giving or purporting to give any right,
either absolutely or upon any condition or contin-
gency, to any passage or conveyance upon any vessel
or railroad train, unless he is an authorized agent
within the provisions of the last section; nor shall any
person, as such agent, sell any such ticket or instru-
ment, or ask, take or receive any consideration for any
such passage or conveyance, excepting at the office
designated in his appointment, nor until he has been
authorized to act as such agent according to the
provisions of the preceding section, nor for a sum
exceeding the price charged at the time of such sale,
by the company, owners or consignees of the vessel or
railroad referred to in such ticket. Nor shall any such
ticket or instrument be issued or sold, which purports
to entitle a person to a passage by any mode of con-
veyance, or to any place of destination, or by any
route, vessel or train, other than the one bargained for.
Founded upon Laws of 1860, ch. 103, § 2.
S 671. No person other than an agent appointed,
as provided in section 669, shall sell, or offer to sell,
or in any way attempt to dispose of any order, cer-
OF THE STATE OF NEW YORK.
251
purpose of
tickets.
tificate, receipt or other instrument for the purpose, &c., for the
or under the pretense of procuring any ticket, or procuring
instrument mentioned in section 669, upon any com-
pany or line, vessel or railroad train therein men-
tioned. And every such order sold or offered for
sale by any agent, must be directed to the company,
owners or consignees at their office.
Ibid., § 3.
S 672. Every person guilty of a violation of any
of the provisions of the preceding sections of this
chapter, is punishable by imprisonment in a state
prison not exceeding two years, or by imprisonment
in a county jail not less than six months.
Ibid., § 4.
S 673. All persons who conspire together to sell or
attempt to sell, to any person, any passage ticket,
or other instrument mentioned in sections 669 and 671,
in violation of those sections, and all persons, who,
by means of any such conspiracy obtain, or attempt
to obtain any money or other property, under the pre-
tense of procuring or securing any passage or right
of passage in violation of this chapter, are punish-
able by imprisonment in a state prison not exceeding
five years.
Ibid., § 5.
$674. Persons guilty of violating the last section,
may be indicted and convicted for a conspiracy,
notwithstanding the object of such conspiracy has
been executed.
Ibid., § 6.
$675. All offices kept for the purpose of selling
passage tickets in violation of any of the provisions
of this chapter, and all offices where any such sale is
made, are deemed disorderly houses; and all persons
keeping any such office, and all persons associating
together for the purpose of violating any of the pro-
visions of this chapter, are punishable by imprison-
Punish-
ment for
of the pre-
ceding
violation
sections.
Conspiring
sage tickets
to sell pas-
in violation
of law.
Conspi-
rators may
be indicted,
standing
notwith-
object of
conspiracy
has been ac-
complished.
office
unlawful
sage tickets
kept for
sale of pas-
declared
disorderly
houses,
252
THE PENAL CODE
Owners,
ment in a county jail for a period not exceeding six
months, and not less than three months.
Ibid., § 7.
Section 8 of the act is omitted for the reason that it is
of doubtful expediency; and if desirable to be retained,
it appertains to the Code of Criminal Procedure. It is
as follows: "All complaints regarding the violation of
this act shall be presented by the district attorney of the
district where such complaint was made, to the grand
jury, for indictment, in preference to all other complaints.
And it shall be the duty of judges of the court of general
sessions of the peace, and of the courts of oyer and termi-
ner, in the counties of Erie, Albany and New York, to call
the attention of the several grand juries to the provisions
of this act."
S 676. The provisions of this chapter do not pre-
&c., allow vent the actual owners or consignees of any vessel,
pursers,
ed to sell
tickets.
Station
masters,
&c., allow-
ed to sell
tickets.
from selling passage tickets thereon; nor do they
prevent the purser or clerk of any vessel from selling
in his office on board of such vessel, any passage
tickets upon such vessel.
Laws of 1860, ch. 103, § 9,
S677. The provisions of this chapter do not pre-
conductors, vent the station master or other ticket agent upon
any railroad, from selling in his office in any station
on such railroad, any passage tickets upon such rail-
road; nor do they prevent any conductor upon any
railroad from selling such tickets upon the trains of
such road.
What must
be stated in
passage
ticket.
S 678. Every ticket or instrument issued as evi-
dence of a right of passage upon the high seas, from
any port in this state, to any port of any other state
or nation, and every certificate or order issued for
the purpose, or under pretense of procuring any such
ticket or instrument, and every receipt for money
paid for any such ticket or instrument, must state
the name of the vessel on board of which the passage
is to be made, the name of the owners or consignees
of such vessel; the name of the company, or line, if
OF THE STATE OF NEW YORK.
253
any, to which such vessel belongs, the place from
which such passage is to commence, the place where
such passage is to terminate, the day of the month
and year upon which the voyage is to commence,
the name of the person or persons purchasing such
ticket or instrument, or receiving such order, certifi-
cate or receipt, and the amount paid therefor; and
such ticket or instrument, order, certificate or receipt,
unless sold or issued by the owners or consignees of
such vessel, must be signed by their authorized agent.
Ibid., § 11.
S 679. Every person who issues, sells or delivers
to another, any ticket, instrument, certificate, order
or receipt, which is not made or filled out as prescribed
in the last section, is guilty of felony.
Ibid., § 11.
Sale of
filled out as
tickets not
required in
last section
a felony.
of indict-
$ 680. No indictment or conviction under any pro- Requisites
vision of the preceding sections of this chapter, for ment.
the sale, attempted sale, issuing or delivering of any
ticket, instrument, certificate, order or receipt, is
defective because such ticket, instrument, certificate,
order or receipt is not made or filled out according to
the requirements of the last section.
Ibid., § 11.
Section 12 of the act, which defines the words "ship"
and "steamship," is omitted. A definition of the word
"vessel" is given, among other definitions of terms, in
section 769.
defined.
$681. The term "company," as used in this chap- "Company"
ter, includes all corporations, whether created under
the laws of this state, or of those of any other state
or nation.
Laws of 1860, ch. 103, § 13.
railroad
$ 682. The provisions of this chapter do not permit Foreign
railroad companies incorporated in any other state to companies.
sell passage tickets under this chapter in this state;
nor do they permit the owners or agents of any
254
THE PENAL CODE
vessel to sell tickets for or on behalf of any such
railroad company.
Ibid., § 14.
Issuing
fictitious
bills of
lading &c.
Issuing
fictitious
receipts.
CHAPTER XIV.
FRAUDULENT ISSUE OF DOCUMENTS OF TITLE TO MER-
CHANDISE.
SECTION 683. Issuing fictitious bills of lading, &c.
684. Issuing fictitious warehouse receipts.
685. Erroneous bills of lading or receipts, issued in good faith,
excepted.
686. Duplicate receipts must be marked "Duplicate."
687. Selling, hypothecating or pledging property received for
transportation or storage.
688. Bill of lading or receipt issued by warehouseman, must be
canceled on redelivery of the property.
689. Property demanded by process of law.
S 683. Every person being the master, owner or
agent of any vessel, or officer or agent of any rail-
road, express or transportation company, or otherwise
being or representing any carrier, who delivers any
bill of lading, receipt or other voucher, by which it
appears that any merchandise of any description has
been shipped on board any vessel, or delivered to any
railroad, express or transportation company, or other
carrier, unless the same has been so shipped or deliv-
ered and is at the time actually under the control of
such carrier, or the master, owner or agent of such ves-
sel, or of some officer or agent of such company, to be
forwarded as expressed in such bill of lading, receipt
or voucher, is punishable by imprisonment in a state
prison not exceeding five years, or by a fine not ex-
ceeding one thousand dollars, or both.
See Laws of 1858, ch. 326, § 5.
S 684. Every person carrying on the business of a
warehouse warehouseman, wharfinger, or other depositary of
property, who issues any receipt, bill of lading or
other voucher for any merchandise of any description
OF THE STATE OF NEW YORK.
255
which has not been actually received upon the pre-
mises of such person, and is not under his actual con-
trol at the time of issuing such instrument, whether
such instrument is issued to a person as being the
owner of such merchandise, or as security for any
indebtedness, is punishable by imprisonment in a
state prison not exceeding five years, or by a fine not
exceeding one thousand dollars, or both.
See Laws of 1858, ch. 326, §§ 1, 2.
bills of
receipts,
issued in
good faith,
excepted.
S 685. No person can be convicted of an offense Erroneous
under the last two sections by reason that the con- lading or
tents of any barrel, box, case, cask or other vessel
or package mentioned in the bill of lading, receipt or
other voucher did not correspond with the description
given in such instrument of the merchandise received,
if such description corresponded substantially with
the marks, labels or brands upon the outside of such
vessel or package, unless it appears that the accused
knew that such marks, labels or brands were untrue.
$ 686. Every person mentioned in sections 683 and
684, who issues any second or duplicate receipt or
voucher, of a kind specified in those sections, at a
time while any former receipt or voucher for the mer-
chandise specified in such second receipt is outstand-
ing and uncanceled, without writing across the face
of the same the word "duplicate," in a plain and
legible manner, is punishable by imprisonment in a
state prison not exceeding five years, or by a fine not
exceeding one thousand dollars, or both.
See Laws of 1858, ch. 326, § 3. The words "bill of
lading" are not inserted in this section, as suggested by
Laws of 1859, ch. 353, because by the settled commercial
form of that instrument, a different mode of indicating
that the parts of the bill are duplicates, is in use, and no
advantage is anticipated from insisting on the word
"duplicate."
S 687. Every person mentioned in sections 683 and
684, who sells, hypothecates or pledges any merchan-
Duplicate
must be
marked
Dupli-
receipts
catc.
Selling,
hypothcca-
or
ingr
pledging
256
THE PENAL CODE.
property
received
for trans-
portation
dise for which any bill of lading, receipt or voucher
has been issued by him, without the consent in writing
or storage. thereto of the person holding such bill, receipt or
voucher, is punishable by imprisonment in a state
prison not exceeding five years, or by a fine not
exceeding one thousand dollars, or both.
Bill of
lading or
receipt
issued by
warehouse-
be canceled
on redeli-
very of the
property.
See Laws of 1858, ch. 326, § 4.
S688. Every person mentioned in section 684, who
delivers to another any merchandise for which any
man, must bill of lading, receipt or voucher has been issued,
unless such receipt or voucher bore upon its face the
words "not negotiable," plainly written or stamped,
or unless such receipt is surrendered to be canceled
at the time of such delivery, or unless, in the case of
a partial delivery, a memorandum thereof is indorsed
upon such receipt or voucher, is punishable by im-
prisonment in a state prison not exceeding five years,
or by a fine not exceeding one thousand dollars, or
both.
Property
demanded
(:
See Laws of 1858, ch. 326, § 6; Laws of 1859, ch. 353.
The latter seems to have been intended to amend tho
former by adding the words "bill of lading" to the words
"receipt or voucher," whenever they occur, and the word
forwarder" to the words "warehouseman, wharfinger,
&c." The commissioners have inserted the words "bill
of lading" in the sections in the text, wherever they aro
appropriate; but to insert the word "forwarder" is
thought unnecessary in the present form of the pro-
vision, and in some of the sections unsuitable.
$689. The last two sections do not apply where
by process property is demanded by virtue of process of law.
of law.
See Laws of 1858, ch. 326, § 8.
CHAPTER XV.
MALICIOUS INJURIES TO RAILROADS, HIGHWAYS,
BRIDGES AND TELEGRAPHS.
SECTION 690. Injuries to railroads.
691. Cases where death ensues.
692. Injuries to highways, private ways and bridges.
1
OF THE STATE OF NEW YORK.
257
}
693. Injuries to toll houses and turnpike gates.
694. Injuries to mile boards and guide posts.
695. Injuring telegraph line, or intercepting message, a misde-
meanor.
S 690. Every person who maliciously either:
1. Removes, displaces, injures or destroys any part
of any railroad, whether for steam or horse cars, or any
track of any railroad, or any branch or branchway,
switch, turnout, bridge, viaduct, culvert, embankment,
station house, or other structure or fixture, or any part
thereof, attached to or connected with any railroad;
or,
!
2. Places any obstruction upon the rails or track of
any railroad, or of any branch, branchway or turnout
connected with any railroad,
Is punishable by imprisonment in a state prison
not exceeding four years, or in a county jail not less
than six months.
See 2 Rev. Stat., 689, § 21.
Injuries to
railroads.
where
ensues.
S 691. Whenever any offeuse specified in the last Cases
section results in the death of any human being, the death
offender is punishable by imprisonment in a state
prison for not less than four years.
Injuries to
highways,
ways and
$ 692. Every person who maliciously digs up,
removes, displaces, breaks or otherwise injures or private
destroys any public highway or bridge, or any pri- bridges.
vate way laid out by authority of law, or bridge upon
such way, is guilty of felony.
S 693. Every person who maliciously injures or
destroys any toll house or turnpike gate, is guilty of
felony.
See 2 Rev. Stat., 695, § 30.
S 694. Every person who removes or injures any
mile board, mile stone or guide post, or any inscrip-
tion on such, erected upon any highway, is guilty of
a misdemeanor.
Injuries to
and turn-
toll houses
pike gates.
Injuries to
mile boarda
and guide
posts.
Rep. Pol Code, § 518.
33
-258
THE PENAL CODE
Injuring
telegraph
line, or in-
tercepting
message, a
misde-
meanor.
$695. Every person who maliciously takes down,
removes, injures or obstructs any line of telegraph or
any part thereof, or appurtenance or apparatus there-
with connected, or severs any wire thereof, or fraudu-
lently intercepts any message in its passsge over such
wire, is guilty of a misdemeanor.
!
TITLE XVI.
OF MALICIOUS MISCHIEF.
SECTION 696. Malicious mischief, in general defined.
697. Specifications in following sections, not restrictive of last
section.
698. Poisoning cattle.
699. Killing, maiming or torturing animals.
700. Instigating fights between animals.
701. Keeping houses, pits, &c., for fights between animals.
702. Wounding or trapping birds, or destroying bird's nests in
cemeteries.
703. Burning buildings and other property not the subject of
arson.
704. Breaking or injuring property in houses of worship.
705. Using gunpowder, &c., in destroying or injuring any build-
ing.
706. Endangering human life by placing gunpowder, &c., near
building.
707. Malicious injuries to freeholds.
708. Injuries to standing crops, &c.
709. Removing, defacing or altering landmarks.
710. Interfering with piers, dams, &c.
711. Destroying or injuring dams, &c.
712. Removing or injuring piles used in sea or river embank-
ments, &c.
713. Removing any beacon in New York harbor.
714. Masking or removing signal lights.
715. Injuring or destroying written instruments.
716. Destroying or delaying election returns.
717. Opening or publishing sealed letters.
718. Disclosing contents of telegraphic dispatch.
719. Concealing telegraphic dispatch.
720. Injuring works of art or improvements in any city or vil-
lage.
721. Destroying works of literature or art, or objects of curiosity
in public libraries, museums, &c.
722. Breaking or obstructing gas or water pipes or appurtenances.
1
OF THE STATE OF NEW YORK.
259
mischief,
in general,
$696. Every person who maliciously injures, de- Malicious
faces or destroys any real or personal property not defined.
his own, in cases other than such as are specified in
the following sections, is guilty of a misdemeanor;
and in addition to the punishment prescribed therefor,
he is liable in treble damages for the injury done, to
be recovered in a civil action by the owner of such
property or public officer having charge thereof.
See Rep. Pol. Code, 860.
$ 697. The specification of the acts enumerated in
the following sections of this chapter, is not intended
to restrict or qualify the interpretation of the last
section.
Specifica-
following
tions in
sections,
not restric-
tive of last
section.
cattle.
S698. Every person who maliciously administers Poisoning
any poison to any animal, the property of another,
and every person who maliciously exposes any poison-
ous substance with intent that the same shall be
taken by any such animal, is punishable by imprison-
ment in a state prison not exceeding three years, or
in a county jail not exceeding one year, or by a fine
not exceeding two hundred and fifty dollars, or by
both such fine and imprisonment.
2 Rev. Stat., 689, § 16.
S 699. Every person who maliciously kills, maims
or wounds any animal, the property of another, or
who maliciously and cruelly beats, tortures or injures
any animal, whether belonging to himself or another,
is guilty of a misdemeanor.
2 Rev. Stat., 695, § 26.
Killing,
torturing
maiming or
animals.
fights be-
S 700. Every person who maliciously, or for any Instigating
bet, stake or reward, instigates, encourages or pro- tween ani-
motes any fight between animals, or instigates or
encourages any animal to attack, bite, wound or
worry another, is guilty of a misdemeanor.
houses,
S701. Every person who keeps any house, pit or Keeping
other place to be used in permitting any fight between pit
for fights
260
THE PENAL CODE
between
animals.
Wounding
or trapping
birds, or
destroying
birds' nests
in ceme.
teries.
Burning
buildings
and other
property
not the
subject of
arson.
or injuring
property in
houses of
worship.
animals, or in any other violation of the last section,
is guilty of a misdemeanor.
$ 702. Every person who, within any public ceme-
tery or burying ground, wounds or traps any bird or
destroys any bird's nest, or removes any eggs or
young birds from any nest; and every person who
buys or sells, or offers or keeps for sale, any bird which
has been killed or trapped in violation of this section,
is punishable by a fine of five dollars for each offense,
recoverable by a civil action in any justice's court
within the county where the offense is committed,
brought in the name of any person making a com-
plaint. Such fine shall be applied to the support of
the poor of such county.
See Laws of 1853, ch. 629; Laws of 1855, ch. 564.
S 703. Every person who willfully burns any build-
ing not the subject of arson, any stack of grain of
any kind, or of hay, any growing or standing grain,
grass, trees or fence, not the property of such person,
is punishable by imprisonment in a state prison not
exceeding four years and not less than one year, or
by imprisonment in a county jail not exceeding one
year.
This species of offense is by the existing law denomi-
nated arson in the fourth degree. 2 Rev. Stat., 667, SS
7, 8. The Commissioners have transferred it to this
chapter for the reasons specified in the note to section
521, applying to it the punishment prescribed for arson in
the fourth degree hy Laws of 1862, ch. 197, § 9.
§ 704. Every person who willfully breaks, defaces
Breaking or otherwise injures any house of worship, or any
part thereof, or any appurtenance thereto, or any
book, furniture, ornament, musical instrument, arti-
cle of silver or plated ware, or other chattel kept
therein for use in connection with religious worship,
is guilty of felony.
Using gun-
powder,
S 705. Every person who maliciously, by the ex-
stroying or plosion of gunpowder or other explosive substance,
&c., in de-
OF THE STATE OF NEW YORK.
261
any build-
ing.
destroys, throws down or injures the whole or any injuring
part of any building, by means of which the life or
safety of any human being is endangered, is punish-
able by imprisonment in a state prison not exceeding
ten years, and not less than three.
See Stat., 24th and 25th Vict., ch. 97, § 9.
$706. Every person who places in, upon, under,
against or near to any building, any gunpowder or
other explosive substance, with intent to destroy,
throw down or injure the whole or any part thereof,
under circumstances, that if such intent were accom-
plished, human life or safety would be endangered
thereby, although no damage is done, is guilty of
felony.
Ibid, § 20.
Endanger-
life by plac-
ing human
ing gun-
powder,
&c., near
building.
Malicious
S707. Every person who willfully commits any injuries to
trespass, by either:
1. Cutting down or destroying any kind of wood
or timber, standing or growing upon the lands of
another; or,
2. Carrying away any kind of wood or timber that
has been cut down, and is lying on such lands; or
3. Maliciously severing from the freehold any pro
duce thereof, or anything attached thereto; or,
4. Digging, taking or carrying away from any lot
situated within the bounds of any incorporated city,
without the license of the owner, or legal occupant
thereof, any earth, soil or stone, severed from the
freehold at some previous time, under such circum-
stances as would render the trespass a larceny, if the
thing so severed or carried away were personal pró-
perty; or,
5. Digging, taking or carrying away from any land
in any of the cities of the state, laid down on the
map or plan of said city as a street or avenue, or
otherwise established or recognized as a street or
freeholds.
262
THE PENAL CODE
Injuries to
standing
crops, &c.
Removing,
defacing or
altering
landmarks.
avenue, without the license of the mayor and com-
mon council or other governing body of such city,
or of the owner of the fee thereof, any earth, soil or
stone, under such circumstances as would render the
trespass a larceny, if the thing so severed or carried
away were personal property; or,
6. Putting up, affixing, fastening, printing or paint-
ing, without authority of law, upon any real property
belonging to the state, or to any city, town or village,
or dedicated to the public, or upon any real pro-
perty of any person, association or corporation, with-
out license from the owner thereof, any notice,
advertisement or designation of, or any name for any
commodity, whether for sale or otherwise, or any pic-
ture, word, sign or device, intended to call attention
thereto;
Is guilty of a misdemeanor.
Embraces such of the provisions of 2 Rev. Stat., 693,
15, as amended Laws of 1851, ch. 182, as are not
already covered by other sections of the Code. See sec-
tion 596.
Subd. 6. This provision is rendered necessary by the
practice, unfortunately, common, of affixing to any pic-
turesque rock or point of land, some advertisement of a
current nostrum, or other notice, without permission
from any competent authority. This is now only a sim-
ple trespass; but it should be a misdemeanor.
S708. Every person who maliciously injures or
destroys any standing crops, grain, cultivated fruits
or vegetables, the property of another, in any case for
which a punishment is not otherwise prescribed by
this Code, or by some of the statutes which it speci-
fies as continuing in force, is guilty of a misdemeanor.
See Stat., 24th and 25th Vict., ch. 97, §§ 23, 24.
S 709. Every person who either:
1. Maliciously removes any monuments of stone,
wood or other material, erected for the purpose of
designating any point in the boundary of any lot or
tract of land; or,
OF THE STATE OF NEW YORK.
263
2. Maliciously defaces or alters the marks upon
any tree, post or other monument, made for the pur-
pose of designating any point, course or line in any
such boundary; or,
3. Maliciously cuts down or removes any tree upon
which any such marks have been made for such pur-
pose, with intent to destroy such marks,
Is guilty of a misdemeanor.
See 2 Rev. Stat., 695, § 32.
with piers,
dams, &c.
S 710. Every person who, without authority of law, Interfering
interferes with any pier, booms or dams, lawfully
erected or maintained upon any waters within this
state, or hoists any gate in or about said dams, is
guilty of a misdemeanor.
Founded upon Laws of 1859, ch. 350, § 2, but made
general. That act applies only to booms and dams in
Salmon river.
or injuring
dams, &c.
S 711. Every person who maliciously destroys any Destroying
dam or structure erected to create hydraulic power,
or any embankment necessary for the support thereof,
or maliciously makes, or causes to be made, any
aperture in such dam or embankment, with intent to
destroy the same, is guilty of a misdemeanor.
2 Rev. Stat., 695, § 31.
S712. Every person who maliciously draws up or
removes, or cuts or otherwise injures, any piles fixed
in the ground and used for securing any sea bank or
sea walls, or the bank or dam of any river, canal,
drain, aqueduct, marsh, reservoir, pool, port, harbor,
dock, quay, jetty or lock, is punishable by imprison-
ment in a state prison not exceeding five years and
not less than two, or by imprisonment in a county
jail not exceeding one year, or by a fine not exceed-
ing five hundred dollars, or by both such fine and
imprisonment.
See Stat., 24th and 15th Vict., ch. 97, § 31.
Removing
piles used
bankments,
or injuring
in sea or
river em-
&c.
264
THE PENAL CODE
Removing
any beacon
in New
York har-
bor.
Masking or
removing
signal
lights.
Injuring or
destroying
written
instru-
ments.
Destroying
or delaying
election
returns.
Opening or
publishing
scaled
lettors.
S713. Every person who willfully removes any
buoy or beacon placed in the harbor of New York by
the United States light house board, or any other
lawful authority, is guilty of a misdemeanor.
Rep. Pol. Code, § 381.
S 714. Every person who unlawfully masks, alters
or removes any light or signal, or willfully exhibits
any false light or signal, with intent to bring any
vessel into danger, is punishable by imprisonment in
a state prison not exceeding ten years, and not less
than three.
See Stat., 24th and 25th Vict., ch. 97, § 47.
S715. Every person who maliciously mutilates,
tears, defaces, obliterates or destroys any written
instrument being the property of another, the false
making of which would be forgery, is punishable in
the same manner as the forgery of such instrument
is made punishable.
See Nixon's Dig. Laws of N. J., 188, § 69.
S 716. Every messenger appointed by authority of
law to receive and carry any report, certificate or
certified copy of any statement relating to the result
of any election, who willfully mutilates, tears, defaces,
obliterates or destroys the same, or does any other
act which prevents the delivery of it as required by
law; and every person who takes away from such
messenger any such report, certificate or certified
copy, with intent to prevent its delivery, or who will-
fully does any injury or other act such as is above
specified, is punishable by imprisonment in a state
prison not exceeding five years, and not less than two.
See Laws of 1842, ch. 130, tit. vi., § 18.
S 717. Every person who willfully opens or reads,
or causes to be read any sealed letter not addressed
to himself, without being authorized so to do, either
by the writer of such letter, or by the person to whom
OF THE STATE OF NEW YORK.
265
it is addressed; and every person who without the
like authority publishes any letter, knowing it to
have been opened in violation of this section or any
part, is guilty of a misdemeanor.
Disclosing
contents of
dispatch.
S 718. Every person who discloses the contents of
any telegraphic dispatch, or any part thereof, ad- telegraphic
dressed to another person, without the permission of
such person, to his loss, injury or disgrace, is guilty
of a misdemeanor.
S
telegraphic
$ 719. Every person who, having in his possession Concealing
any telegraphic dispatch addressed to another, mali- dispatch.
ciously secretes, conceals or suppresses the same, is
guilty of a misdemeanor.
$720. Every person who willfully injures, disfig-
ures or destroys, not being the owner thereof, any
monument, work of art, or useful or ornamental im-
provement, within the limits of any village, town or
city, or any shade tree or ornamental plant growing
therein, whether situated upon private ground, or on
any street, sidewalk or public park or place, is guilty
of a misdemeanor.
See Laws of 1853, ch. 573. Laws of 1860, ch.
98, § 3.
S721. Every person who maliciously cuts, tears,
defaces, disfigures, soils, obliterates, breaks or destroys
any book, map, chart, picture, engraving, statue, coin,
model, apparatus, specimen or other work of litera-
ture or art, or object of curiosity deposited in any
public library, gallery, museum, collection, fair or
exhibition, is punishable by imprisonment in a state
prison for not exceeding three years, or in a county
jail not exceeding one year.
Injuring
works of art
or improve-
min
any city or
village.
Destroying
works of
literature
or art, or
curiosity in
objects of
public libra-
ries, muse-
ums, &c.
or obstruct-
§ 722. Every person who willfully breaks, digs up Breaking
or obstructs, any pipe or main for conducting gas or ing gas
water, or any works erected for supplying buildings pipes or
with gas or water, or any appurtenances or appen- nauces.
or water
appurte
34
266
THE PENAL CODE
dages therewith connected, is punishable by imprison-
ment in a state prison not exceeding three years, or
in a county jail not exceeding one year.
See Laws of 1860, ch. 172, § 7.
Commis-
sioner of
excise
granting
License
wrongfully.
Selling
liquor to
Indians.
Being in-
toxicated in
public
places.
TITLE XVII.
OF MISCELLANEOUS CRIMES.
SECTION 723. Commissioner of excise granting license wrongfully.
724. Selling liquor to Indians.
725. Being intoxicated in public places.
726. Selling liquor to habitual drunkards.
727. Selling liquor to paupers.
728. Selling liquor upon Sundays.
729. Violation of laws relative to navigation.
•
730. Attorneys forbidden to defend criminal prosecutions carried
on by their partners, or formerly by themselves.
731. Fraudulently presenting bills or claims to public officers for
payment.
732. Attorneys may defend themselves.
733. Intimidating laborers.
734. Intimidating employers.
735. Voting unlawfully at an annual town meeting.
736. Acts not expressly forbidden.
$723. Every commissioner of excise who concurs
in granting any license to sell strong or spirituous
liquors, or wines, contrary to the provisions of Chap-
ter II of Title IV of Part III of the Political Code,
is guilty of a misdemeanor.
See Rep. Pol. Code, § 792.
S 724. Every person who sells or gives away any
strong or spirituous liquor, or wine, to any Indian in
this state, is guilty of a misdemeanor.
See Rep. Pol. Code, § 797.
$ 725. Every person being intoxicated in any public
place, is punishable, upon conviction, in the manner
specified in section 799 of the Political Code, by a
fine of ten dollars and costs of the proceedings at the
:
OF THE STATE OF NEW YORK.
267
same rate as in courts of special sessions, and by im-
prisonment in the county jail, workhouse or peniten-
tiary until such fine is paid, not, however, exceeding
ten days.
See Rep. Pol. Code, § 799.
S 726. Every person guilty of selling any strong or
spirituous liquor, or wine, to any person guilty of
habitual drunkenness, or to any person to whom the
seller has been requested by the parent, guardian,
husband or wife of such person not to sell any strong
or spirituous liquor, or wine, is punishable by a fine
not exceeding fifty dollars and not less than twenty,
for each offense; and in addition thereto he forfeits
any license he may have received to sell strong or
spirituous liquors, or wines, and is forever after in-
capable of receiving such license.
See Rep. Pol. Code, § 801.
Selling li
itual drunk-
quor to hab-
ards.
liquor to
S727. Every person who sells or gives to any per- Selling
son, knowing him to be a pauper or inmate of any paupers.
poor house or alms house, any strong or spirituous
liquor, or wine, without authority from the superin-
tendent or physician of such poor house or alms house,
is punishable by a fine of twenty-five dollars.
Rep. Pol. Code, § 802.
S 728. Every innkeeper, or person licensed, to sell
liquors, who sells or gives away any strong or spirit-
uous liquor, or wine, upon Sunday, or upon any
election day, in violation of section 803 of the Politi-
cal Code, is guilty of a misdemeanor.
See Rep. Pol. Code, § S03.
S 729. Every master or other person engaged in
navigating any steamboat, who violates any of the
provisions of sections 268, 269, 270, 271, 272, 273,
274, 275 or 282 of the Political Code, is guilty of a
misdemeanor; and in addition to the punishment
prescribed therefor, is liable to a penalty of two
hundred and fifty dollars.
Selling
liquor upon
Sundays.
Violation of
tive to navi-
laws rela-
gation.
268
THE PENAL CODE
Attorneys
forbidden
to defend
criminal
prosecu-
tions car-
ried on by
their part-
ners or
formerly by
See Rep. Pol. Code, §§ 276, 283. Sectious 285 is not
included in the above enumeration of sections, for the
reason that its provisions are substantially embraced in
other provisions of this Code.
S 730. Every attorney who directly or indirectly
advises in relation to, or aids or promotes the defense
of any action or proceeding in any court, the prose-
cution of which is carried on, aided or promoted by
themselves. any person as district attorney or other public prose-
cutor, with whom such person is directly or indirectly
connected as a partner; or who, having himself pro-
secuted or in any manner aided or promoted any
action or proceeding in any court, as district attorney
or other public prosecutor, afterwards directly or
indirectly advises in relation to, or takes any part in,
the defense thereof, as attorney or otherwise; or who
takes or receives any valuable consideration from or
on behalf of any defendant in any such action, upon
any understanding or agreement whatever, express
or implied, having relation to the defense thereof, is
guilty of a misdemeanor; and in addition to the pun-
ishment prescribed therefor, he forfeits his license to
practice.
Attorney's
may defend
themselves.
Fraudulent-
ly present-
ing bills or
claims to
public offi.
cers for pay-
ment.
This section and the next are founded on the provisions
of Laws of 1846, ch. 120. The verbal changes made are
chiefly to secure greater conciseness of expression.
S 731. The last section does not prohibit an attor-
ney from defending himself in person, as attorney or
as counsel, when prosecuted either civilly or crimin-
ally.
S 732. Every person who, with intent to defraud,
presents for allowance or for payment to any state
board or officer, or to any county, town, city, ward or
village board or officer, who would be authorized to
allow or pay the same, if genuine, any false or fraudu-
lent claim, bill, account, voucher or writing, is guilty
of felony.
OF THE STATE OF NEW YORK.
269
The latter part of the section is founded upon the act
of Congress of March 3, 1823, under which Kohustamm
was lately convicted. See also act of March 2, 1863.
Some such provision is rendered necessary by practices
unhappily too notorious to need to be specified.
dating
laborers or
S 733. Every person who, by any use of force, Intimi
threats or intimidation, prevents or endeavors to pre-employers.
vent any hired foreman, journeyman, apprentice,
workman, laborer, servant or other person employed
by another, from continuing or performing his work,
or from accepting any new work or employment, or
in like manner endeavors to induce such hired person
to relinquish his work or employment, or to return
any work he has in hand, before it is finished; and
every person who, by any use of force, threats or in-
timidation, prevents or endeavors to prevent another
from employing any person, or, in like manner,
endeavors to compel another to employ any person,
or to force or induce another to alter his mode of car-
rying on business, or to limit or increase the number
of his hired foremen, journeymen, apprentices, work-
men, laborers, servants or other persons employed by
him, or their rate of wages or time of service, is
guilty of a misdemeanor.
See Stat., 6 Geo. IV., cli. 129, § 3. As to what consti-
tutes a "threat," within such a provision, see O'Neill v.
Layman, 11 Weekly R., 947: 8 Law T. (N. S.), 657. It
is there held that under the English statute already cited,
it is not necessary to show a threat of actual violence;
but a threat to follow out an unlawful purpose is suffi-
cient. Thus where L., being at the time in the employ
of K., was summoned to attend a meeting of a club to
which he belonged, and was asked by the chairman,
"whether he intended to continue an honorable member
of the club and leave K.'s employ, or remain where he
was and be despised by the club, and have his name sent
round all over the country, and be put to all sorts of
unpleasantness;" it was held that this was a threat within
the statute.
S 734. Every person who votes at any annual town
meeting, in a town in which he does not reside, or
Voting un-
annual
lawfully at
270
THE PENAL CODE
town
meeting.
Publishing
false mes-
sages, &c.,
or State ex-
ecutive.
who offers to vote at any annual town meeting after
having voted at an annual town meeting held in
another town, within the same year, is guilty of a
misdemeanor.
Suggested as a substitute for Rep. Pol. Code, § 986.
See note to section 68 of this Code, for reasons for change
of phraseology.
$735. Every person who prints, publishes or cir-
of Federal' culates, as true, any message, order or proclamation
purporting to be the message, order or proclamation
of the executive of the United States or of this state,
or of any other state of the United States now or
hereafter admitted, or of any territory of the United
States, knowing the same not to be genuine, is pun-
ishable, in any county in which the same is printed,
published or circulated, by imprisonment in a state
prison not exceeding five years, or by fine not exceed-
ing one thousand dollars, or both.
This section is rendered necessary by the recent publi-
cation, by one Howard, of a proclamation purporting to
be the act of the president of the United States, in effect
announcing the defeat of the Union armies, appointing
a day of fasting, and calling for additional troops. If
this be regarded as the act of two or more in combina-
tion, it would have been punishable at common law as a
conspiracy to affect the price of stocks. (See Cochrane's
case, 2 Townsh. St. T., 1), and also under section 244,
subd. 5, of this code; and if considered as the act of an
individual, it is made punishable by section 469. But the
magnitude of the offense, especially in times of great
public excitement like the present, demands that such an
act should be punished with more severity than a simple
misdemeanor.
The section in the text is extended to messages, &c., of
the executive of the United States, because the greatest
evil lies in such publications, and they are most likely
to be made in our commercial metropolis, as a center of
influence and information. Besides, there being no com-
mon law of the United States, the offense cannot be
punished as a conspiracy, in the Federal courts. Nor
is there any statute of the United States making it pun-
ishable at all, unless it may be treated as a military
offense, which is doubtful. Indeed, it is understood that
!
OF THE STATE OF NEW YORK.
271
Howard has been discharged, there being no law of the
United States to which he is amenable.
The reasons which require the section to be extended
so as to include messages of the executive of this state,
justify its enlargement to include those of the executive
officers of other states and territories.
expressly
forbidden.
S 736. Every person who willfully and wrongfully Acts not
commits any act which grossly injures the person
or property of another, or which grossly disturbs or
endangers the public peace or health, or which openly
outrages public decency and is injurious to public
morals, for which no other punishment is expressly
prescribed therefor by this Code, is guilty of a mis-
demeanor.
See Barb. Cr. L., 220, 222; Commonwealth v. Sharp-
less, 2 Serg. & R., 91; 1 Russ. Cr., 45; Bish. Cr. L., § 394.
TITLE XVIII.
GENERAL PROVISIONS.
SECTION 737. Acts made punishable by different provisions of this Code.
738. Acts punishable under foreign law.
739. Foreign conviction or acquittal.
740. Contempts, how punishable.
741. Mitigation of punishment in certain cases.
742. Aiding in misdemeanor.
743. Sending letter, when deemed complete.
744. Omission to perform duty, when punishable.
745. Attempts to commit crimes when punishable.
746. Attempts to commit crimes, how punishable.
747. Restriction upon the preceding sections.
748. Second offenses, how punished, after conviction of former
offense.
749. Attempts to conceal death of child, how punished after con-
viction of former attempt.
750. Second offenses, how punished, after conviction of petit
larceny, or of attempt to commit a state prison offense.
751. Foreign conviction for former offense.
752. Second term of imprisonment, when to commence.
753. Imprisonment for life.
754. Sentence to state prison, how to be limited.
755. Juvenile offenders may be sent to penitentiary.
272
THE PENAL CODE
Acts made
punishable
provisions
of this Code
SECTION 756. Fine may be added to imprisonment.
757. Civil rights of convict suspended.
758. Civil death.
759. Person of convict protected.
760. Forfeitures.
761. Witness' testimony may be read against him on prosecution
for perjury.
762. Certain terms defined, in the senses in which they are used
in this Code.
763. "Willfully" defined.
764. "Neglect, "negligence," &c., defined.
765. "Corruptly" defined.
766. "Malice" and "Maliciously " defined.
767. "Knowingly" defined.
768. "Bribe" defined.
769. "Vessel" defined.
770. "Peace officer" defined.
771. "Magistrate " defined.
772. "Signature" defined.
773. "Writing" defined.
774.
775.
Real property" defined.
Personal property " defined.
776. "Property" defined.
777. "Person" defined.
778. "Person," when used to denote owner of property.
779. Singular includes plural.
780. Masculine word includes feminine, &c.
781. Present tense, how used.
782. What intent to defraud is sufficient.
783. Civil remedies preserved.
784. Proceedings to impeach or remove officers and others, pre-
served.
785. Military punishments and punishments for contempt and
certain special proceedings preserved.
་
786. Certain statutes specified as continuing in force.
$737. An act or omission which is made punisha-
by different ble in different ways by different provisions of this
Code, may be punished under either of such pro-
visions (except that in the cases specified in sections
748 to 751, inclusive, the punishment therein pre-
scribed are substituted for those prescribed for a first
offense), but in no case can it be punished under
more than one; and an acquittal or conviction and
sentence under either one, bars a prosecution for the
same act or omission under any other.
}
1
OF THE STATE OF NEW YORK.
273
ishable un-
law.
$ 738. An act or omission declared punishable by Acts pun-
this Code, is not less so because it is also punishable, der foreign
under the laws of another state, government or
country, unless the contrary is expressly declared
in this Code,
conviction
$ 739. But whenever it appears upon the trial of Foreign
an indictment that the accused has already been or acquittal.
acquitted or convicted upon any criminal prosecution
under the laws of another state, government or coun-
try, founded upon the act or omission in respect to
which he is upon trial, this is a sufficient defense
This section is intended to apply in cases where the
foreign acquittal or conviction took place in respect to
the particular act or omission charged against the accused
upon the trial in this state, and is not restricted to cases
where the accused was tried abroad under the same
charge.
how pun-
$ 740. A criminal act is not the less punishable as contempts,
a crime, because it is also declared to be punishable ishable.
as a contempt.
Mitigation
of punish-
tain cases.
S 741. But where it is made to appear at the time
of passing sentence upon a person convicted upon ment in cer-
indictment, that such person has already paid a fine
or suffered an imprisonment for the act of which he
stands convicted, under an order adjudging it a con-
tempt, the court authorized to pass sentence may
mitigate the punishment to be imposed, in its dis-
cretion.
Founded upon 2 Rev. Stat., 278, § 15.
misde
meanor.
$ 742. Whenever an act is declared a misdemeanor, Aiding in
and no punishment for counseling or aiding in the ma
commission of such act is expressly prescribed by
law, every person who counsels or aids another in the
commission of such act, is guilty of a misdemeanor,
The punishment of accessories in cases of felony, is
provided for by section 30 of this Code.
35
274
THE PENAL CODE
Sending
letter, when
deemed
complete.
Omission
to perform
$ 743. In the various cases in which the sending
of a letter is made criminal by this Code, the offense
is deemed complete from the time when such letter
is deposited in any post office or any other place, or
delivered to any person with intent that it shall be
forwarded. And the party may be indicted and
tried in any county wherein such letter is so deposi-
ted or delivered, or in which it shall be received by
the person to whom it is addressed.
See Rex v. Williams, 2 Campb., 506.
S744. No person is punishable for an omission to
duty, when perform an act, where such act has been performed
by another person acting in his behalf, and compe-
tent by law to perform it.
punishable
able.
Attempts
to commit
crimes,
when pun-
ishable.
Attempts
to commit
crimes,
how pun-
ishable.
$ 745. Any person may be convicted of an attempt
to commit a crime although it appears on the trial
that the crime intended or attempted was perpetra-
ted by such person in pursuance of such attempt,
unless the court, in its discretion, shall discharge the
jury and direct such person to be tried for such
crime.
See 2 Rev. Stat., 702, § 26; Stat. 14 and 15 Vict.,
ch. 100, § 9.
$746. Every person who attempts to commit any
crime, but fails, or is prevented or intercepted in the
perpetration thereof, is punishable, where no provi-
sion is made by law for the punishment of such
attempt, as follows:
1. If the offense so attempted be punishable by
imprisonment in a state prison for four years or
more, or by imprisonment in a county jail, the per-
son guilty of such attempt is punishable by impri-
sonment in a state prison, or in a county jail, as the
case may be, for a term not exceeding one-half
the longest term of imprisonment prescribed upon
a conviction for the offense so attempted;
2. If the offense so attempted be punishable by
imprisonment in a state prison for any time less than
OF THE STATE OF NEW YORK.
275
four years, the person guilty of such attempt is pun-
ishable by imprisonment in a county jail for not more
than one year;
3. If the offense so attempted be punishable by a
fine, the offender convicted of such attempt is pun-
ishable by a fine not exceeding one-half the largest
fine which may be imposed upon a conviction of the
offense so attempted;
4. If the offense so attempted be punishable by
imprisonment and by a fine, the offender convicted of
such attempt may be punished by both imprisonment
and fine, not exceeding one-half the longest term of
imprisonment, and one-half the largest fine which
may be imposed upon a conviction for the offense so
attempted.
2 Rev. Stat., 698, § 3.
Omitted provisions. In the corresponding provision in
the Revised Statutes the first subdivision is: "If the
offense so attempted to be committed was such as is pun-
ishable by the death of the offender, the person convicted
of such attempt shall be punished by imprisonment in a
state prison not exceeding ten years." As arson is not
punishable, according to the provisions of this Code, by
death, there only remain attempts to commit murder and
treason, to which this provision can possibly apply.
Attempts to murder are the subject of specific provisions.
See sections 277, 278, 279. If there can be recognized
an attempt to commit treason, which might be the sub-
ject of punishment under the above provision, such act
will generally be found embraced under provisions of the
Code relative to conspiracy, riot, &c. It has therefore
not been thought important to retain the provision.
upon the
sections.
S747. The last two sections do not protect a per- Restriction
son who, in attempting unsuccessfully to commit a preceding
crime, accomplishes the commission of another and
different crime, whether greater or less in guilt, from
suffering the punishment prescribed by law for the
crime committed.
of
S 748. Every person who, having been convicted
any offense punishable by imprisonment in a state
prison, commits any crime after such conviction, is
punishable therefor as follows:
second of
punished,
viction of
fenses, how
after con-
former
offense.
276
THE PENAL CODE
Attempts
to conceal
death of
child, how
punished
after con-
viction of
former at-
tempt.
Second of
fenses, how
punished,
after con-
viction of
1. If the offense of which such person is subse-
quently convicted is such that, upon a first conviction
an offender would be punishable by imprisonment in
a state prison for any term exceeding five years, such
person is punishable by imprisonment in a state prison
for a term not less than ten years;
2. If such subsequent offense is such that, upon a
first conviction, the offender would be punishable by
imprisonment in a state prison for five years, or any
less term, then the person convicted of such subse-
quent offense is punishable by imprisonment in a
state prison for a term not exceeding ten years;
3. If such subsequent conviction is for petit larceny,
or for any attempt to commit an offense which, if
committed, would be punishable by imprisonment in
a state prison, then the person convicted of such
subsequent offense is punishable by imprisonment in
a state prison for a term not exceeding five years.
Founded upon 2 Rev. Stat., 699, § 8, the provision being
extended to embrace cases of offenders who, upon a first
conviction of a crime punishable in the discretion of the
court by imprisonment in a state prison or otherwise,
received sentence for the alternative punishment; instead
of being confined to those who have been actually dis-
charged from imprisonment upon the first conviction.
S 749. Every woman who, having been convicted
of endeavoring to conceal the still birth of any issue
of her body, which, if born alive, would be a bastard,
or the death of any such issue under the age of two
years, subsequently to such conviction endeavors to
conceal any such birth or death of issue of her body,
is punishable by imprisonment in a state prison not
exceeding five years, and not less than two.
Laws of 1845, ch. 260, § 4, modified as stated in
note to preceding section.
S 750. Every person who, having been convicted.
of petit larceny, or of an attempt to commit an
offense which, if perpetrated, would be punishable
OF THE STATE OF NEW YORK.
277
by imprisonment in a state prison, commits any petit lar-
crime after such conviction, is punishable as follows:
1. If such subsequent offense is such that upon a
first conviction the offender would be punishable by
imprisonment in a state prison for life, at the discre-
tion of the court, such person is punishable by im-
prisonment in such prison during life;
2. If such subsequent offense is such that upon a
first conviction the offender would be punishable by
imprisonment in a state prison for any term less than
for life, such person is punishable by imprisonment
in such prison for the longest term prescribed, upon
a conviction for such first offense.
3. If such subsequent conviction is for petit larceny
or for any attempt to commit an offense which, if
perpetrated, would be punishable by imprisonment in
a state prison, then such person is punishable by im-
prisonment in such prison for a term not exceeding
five years.
2 Rev. Stat., 699, § 9, modified as stated in note to
section 748.
ceny, or of
commit a
state prison
attempt to
offense.
conviction
offense.
S 751. Every person who has been convicted in any Foreign
other state, government or country of an offense for former
which, if committed within this state, would be pun-
ishable by the laws of this state by imprisonment in
a state prison, is punishable for any subsequent crime
committed within this state, in the manner prescribed
in the last three sections, and to the same extent as
if such first conviction had taken place in a court of
this state.
2 Rev. Stat., 700 § 10.
S 752. When any person is convicted of two or
more crimes before sentence has been pronounced
upon him for either, the imprisonment to which he
is sentenced upon the second or other subsequent
conviction, must commence at the termination of the
first term of imprisonment to which he shall be
Second
term of im-
when to
commence.
278
THE PENAL CODE
Imprison-
ment for
life.
Sentence to
state pri-
be limited.
adjudged, or at the termination of the second or other
subsequent term of imprisonment, as the case may be.
2 Rev. Stat., 700, § 11.
$ 753. Whenever any person is declared punishable
for a crime by imprisonment in a state prison for a
term not less than any specified number of years, and
no limit to the duration of such imprisonment is de-
clared, the court authorized to pronounce judgment
upon such conviction may, in its discretion, sentence
such offender to imprisonment during his natural life,
or for any number of years, not less than such as are
prescribed. But no person can in any case be sen-
tenced to imprisonment in a state prison for any term
less than one year.
$ 754. In
2 Rev. Stat., 700, § 12, as amended by Laws of 1862,
ch. 417. Section 12 is evidently the one intended to be
amended by the act of 1862, though by a clerical error
the reference made is to section 13.
cases where convicts sentenced to be
son, how to imprisoned in a state prison for a longer period than
one year, it is the duty of the court before which the
conviction is had to limit the time of the sentence so
that it will expire between the month of March and
the month of November, unless the exact period of
the sentence is fixed by law.
Juvenile
offenders
may be sent
tiary.
Laws of 1836, ch. 171, § 6; "one year" being substi-
tuted for "two years," to correspond with the change
introduced by Laws of 1862, ch. 417.
$ 755. Whenever any person under the age of
to peniten- twenty-one and above the age of sixteen years is
convicted of an offense punishable by imprisonment
in a state prison, in either of the judicial districts of
this state within which is a penitentiary, the court
before whom such conviction is had may, in its dis-
cretion, sentence the person so convicted to imprison-
ment in the penitentiary situated in that judicial
district.
See Laws of 1856, ch. 158, § 1.
OF THE STATE OF NEW YORK.
279
be added to
meut.
$756. Upon a conviction for any crime punishable Fine may
by imprisonment in any jail or prison, in relation to imprison-
which no fine is herein prescribed, the court may
impose a fine on the offender not exceeding two
hundred dollars, in addition to the imprisonment
prescribed.
2 Rev. Stat., 700, § 13.
of convict
$ 757. A sentence of imprisonment in a state prison Civil rights
for any term less than for life, suspends all the civil suspended.
rights of the person so sentenced, and forfeits all
public offices, and all private trusts, authority or
power during the term of such imprisonment.
2 Rev. Stat., 700, § 19.
S758. A person sentenced to imprisonment in a Civil death.
state prison for life, is thereafter deemed civilly dead.
2 Rev. Stat., 700, § 20.
convict
S 759. The person of a convict sentenced to im- Person of
prisonment in a state prison is under the protection protected.
of the law, and any injury to his person, not author-
ized by law, is punishable in the same manner as if
he was not convicted or sentenced.
2 Rev. Stat., 700, § 21.
ures.
$ 760. No conviction of any person for crime works Forfeit-
any forfeiture of any property, except in the cases
of an outlawry for treason, as provided by Title III
of Part VI of the Code of Criminal Procedure, and
other cases in which a forfeiture is expressly imposed
by law; and all forfeitures to the people of this state
in the nature of a doedand, or where any person shall
flee from justice, are abolished.
See 2 Rev. Stat., 700, § 22. That no forfeiture is im-
posed for suicide, see section 228.
testimony
$ 761. The various sections of this Code which witness'
declare that evidence obtained upon the examination may be read
of a person as a witness shall not be received against
against him
on prosecu-
280
THE PENAL CODE
tion for
perjury.
Certain
terms de-
fined, in the
senses in
which they
him in any criminal proceeding, do not forbid such
evidence being proved against such person upon any
proceedings founded upon a charge of perjury com-
mitted in such examination.
$ 762. Wherever the terms mentioned in the fol-
lowing sections are employed in this Code, they are
are used in deemed to be employed in the senses hereafter affixed
to them, except where a different sense plainly
this Code.
"Willfully"
defined.
"Neglect,"
"negli-
gence,
&c., de-
fined.
"Corrupt-
ly" defined.
46
"Malice"
and Mali-
ciously"
defined.
" Know-
ingly" de-
fined.
appears.
S 763. The term "willfully," when applied to the
intent with which an act is done or omitted, implies
simply a purpose or willingness to commit the act or
the omission referred to. It does not require any
intent to violate law, or to injure another, or to
acquire any advantage.
"
$ 764. The terms "neglect," negligence," "neg-
ligent" and "negligently," when so employed, im-
port a want of such attention to the nature or probable
consequences of the act or omission as a prudent man
ordinarily bestows in acting in his own concerns.
$ 765. The term "corruptly," when so employed,
imports a wrongful design to acquire or cause some
pecuniary or other advantage to the person guilty of
the act or omission referred to, or to some other
person.
S766. The terms "malice" and " maliciously,"
when so employed, import a wish to vex, annoy or
injure another person; established either by proof or
presumption of law.
$ 767. The term "knowingly," when so applied,
imports only a knowledge that the facts exist which
bring the act or omission within the provisions of
this Code. It does not require any knowledge of the
unlawfulness of such act or omission.
OF THE STATE OF NEW YORK.
281
defined.
S768. The term “bribe " signifies any money, "Bribe"
goods, right in action, property, thing of value or
advantage, present or prospective, or any promise or
undertaking to give any, asked, given or accepted
with a corrupt intent to influence, unlawfully, the
person to whom it is given, in his action, vote or
opinion in any public or official capacity.
$769. The word "vessel" when used with refer-
ence to shipping, includes ships of all kinds, steam-
boats and steamships, canal boats, and every struc-
ture adapted to be navigated from place to place.
"Vessel"
defined.
officer" de-
$ 770. The term "peace officer" signifies any one "Peace,
of the officers mentioned in section 154 of the Code
of Criminal Procedure.
fined.
trate
$771. The term "magistrate" signifies any one of "Magis
the officers mentioned in section 147 of the Code fined.
of Criminal Procedure.
de-
ture de-
$ 772. The term "signature" includes any name, "Signa-
mark or sign, written with intent to authenticate any fined.
instrument or writing.
$ 773. The term " writing" includes both printing "Writing"
and writing.
defined,
perty" de-
$ 774. The term "real property" includes every "Real pro-
estate, interest and right in lands, tenements and ned.
hereditaments.
property"
$775. The term "personal property
personal property" includes
includes "Personal
every description of money, goods, chattels, effects, defined.
evidences of rights in action, and all written instru-
ments by which any pecuniary obligation, right or
title to property, real or personal, is created, acknow-
ledged, transferred, increased, defeated, discharged
or diminished, and every right and interest therein.
36
282
THE PENAL CODE
defined.
"Property" $776. The term "property" includes both real and
personal property.
"Person "
defined.
44
ง
Person
when used
to denote
owner of
property.
Singular
includes
plural.
Masculine
word
includes
feminine,
&c.
Present
tense, how
used.
What in-
tent to
defraud is
sufficient.
See, as to the three sections above, 2 Rev. Stat., 702,
88 33,34.
$ 777. The word "person" includes corporations,
as well as natural persons.
S778. Where the term "person" is used in this
Code to designate the party whose property may be
the subject of any offense, it includes this state, any
other state, government or country which may law-
fully own any property within this state, and all
public and private corporations, or joint associations,
as well as individuals.
2 Rev. Stat., 103, § 35.
S 779. The singular number includes the plural,
and the plural the singular.
$780. Words used in the masculine gender, com-
prehend as well the feminine and neuter.
S 781. Words used in the present tense include the
future, but exclude the past.
S 782. Whenever, by any of the provisions of this
Code chapter, an intent to defraud is required, in
order to constitute any offense, it is sufficient if an
intent appears to defraud any person, association or
body politic or corporate whatever.
Suggested as a substitute for 2 Rev. Stat., 703, § 36.
which is as follows: Where any intent to injure, defraud
or cheat is required by law to be shown in order to con-
stitute any offense, it shall be sufficient, if such intent be
to injure, defraud or cheat the United States, this state or
any other state or country, or the government or any pub-
lic officer thereof, or any county, city or town, or any
corporation, body politic or private individual.
The section in the text will also include the provision of
2 Rev. Stat., 675, § 46, which is as follows: "Whenever
by any of the foregoing provisions an intent to defraud is
required to constitute forgery, it is sufficient if an intent
appears to defraud the United States, any state, or terri-
tory, any body corporate, any county, city, town or village
or any public officer in his official capacity, any copartner-
ship, or any one of such partners or any real person what.
!
OF THE STATE OF NEW YORK.
283
ever." It may be doubted whether this language includes
a joint stock association, though doubtless intended so to
do. And aside from this, the language is needlessly
verbose.
dies pre-
served.
$783. The omission to specify or affirm in this Code Civil reme-
any liability to any damages, penalty, forfeiture or
other remedy, imposed by law, and allowed to be
recovered or enforced in any civil action or proceed-
ing, for any act or omission declared punishable
herein, does not affect any right to recover or enforce
the same.
S 784. The omission to specify or affirm in this Code
any ground or forfeiture of a public office or other
trust or special authority conferred by law, or any
power conferred by law to impeach, remove, depose
or suspend any public officer or other person holding
any trust, appointment or other special authority con-
ferred by law, does not affect such forfeiture or power,
or any proceeding authorized by law to carry into
effect such impeachment, removal, deposition or sus-
pension.
Proceed
peach or
ings to im-
remove
officers
and others
preserved.
punish-
punish-
ments and
ments for
and certain
reserved.
contempt
$ 785. This Code does not affect any power con- Military
ferred by law upon any court martial or other mili-
tary authority or officer, to impose or inflict punish-
ment upon offenders; nor any power conferred by
law upon any public body, tribunal or officer, to
impose or inflict punishment for a contempt; nor any
provisions of the laws relating to apprentices, bas-
tards, disorderly persons, Indians and vagrants.
special pro-
ceedings
Certain
specified as
statutes
continuing
S786. Nothing in this Code affects any of the pro-
visions of the following statutes; but such statutes
are recognized as continuing in force, notwithstand- in force.
ing the provisions of this Code; except so far as they
have been repealed or affected by any subsequent
laws.
1. All acts incorporating municipal corporations,
and acts amending acts of incorporation or charters
of such corporations, or providing for the election or
284
THE PENAL CODE
appointment of officers therein, or defining the powers
and duties of such officers.
2. All acts relating to emigrants or other passen-
gers in vessels coming from foreign countries.
3. An act concerning foreign bank notes. Passed
May, 1839.
Laws of 1839, ch. 355.
4. An act to amend the act entitled "an act to
authorize the business of banking." Passed May 14,
1840.
5. An act to
amend the act
Laws of 1840, ch. 363.
amend the act entitled "an act to
entitled an act to authorize the
business of banking," passed May 14, 1840. Passed
April 10, 1850.
Laws of 1850, ch. 251.
6. An act requiring the police justices in the city
of New York to file records of all convictions of
vagrancy. Passed April 12, 1853.
Laws of 1853, ch. 183.
7. An act to provide for the care and instruction
of idle and truant children. Passed April 12, 1853.
Laws of 1853, ch. 185.
8. An act to amend an act entitled "an act con-
cerning foreign bank notes." Passed April 13, 1853.
Laws of 1853, ch. 223.
9. An act in relation to the property and money
taken from persons arrested and accused of crimes in
the city of New York and Brooklyn. Passed April
9, 1855.
Laws of 1855, ch. 199.
10. An act to regulate the business of purchasing
rags, rope and metals in the city of Albany. Passed
March 28, 1857.
Laws of 1857, ch. 193.
11. An act to establish a metropolitan police dis-
trict and provide for the government thereof. Passed
April 15, 1857.
Laws of 1857, ch. 569.
OF THE STATE OF NEW YORK.
285
12. An act to provide for the preservation of tim-
ber and stone on the lands of Onondaga Indian
Reservation. Passed April 16, 1857.
Laws of 1857, ch. 659.
13. An act to establish regulations for the port of
New York. Passed April 16, 1857.
Laws of 1857, ch. 671.
14. An act in relation to jurors and to the appoint-
ment and the duties of a commissioner of jurors in
the county of Kings. Passed April 17, 1858.
Laws of 1858, ch. 322.
15. An act to provide for the organization and
government of the police force of the city of Albany.
Passed March 31, 1859.
Laws of 1859, ch. 82.
16. An act to amend an act entitled "an act for
the regulation and government of the central park
in the city of New York," passed April 17, 1857, and
further to provide for the maintenance and govern-
ment of said park. Passed April 15, 1859.
Laws of 1859, ch. 349.
17. An act in relation to the court of special ses-
sions in the city and county of New York, and the
powers of police justices. Passed April 19, 1859.
Laws of 1859, ch. 491.
18. An act to amend an act entitled "an act to
establish a metropolitan police district, and to pro-
vide for the government thereof," passed April 15,
1857. Passed April 10, 1860.
Laws of 1860, ch. 259.
19. An act to lay out a public park and a parade
ground for the city of Brooklyn, and to alter the com-
missioner's map of said city. Passed April 17, 1860.
Laws of 1860, ch. 488.
20. An act to preserve the public peace and order
on the first day of the week commonly called Sun-
day. Passed April 17, 1860.
Laws of 1860, ch. 501.
21. An act to amend an act entitled "an act to
lay out a public park and a parade ground in the city
286
THE PENAL CODE
of Brooklyn, and to alter the commissioner's map of
said city," passed April 17, 1860. Passed May 2,
1861.
Laws of 1861, ch. 340.
22. An act to regulate places of public amusement
in the cities and incorporated villages of this state.
Passed April 17, 1862.
Laws of 1862, ch. 281.
23. An act for the preservation of moose, wild
deer, birds and fresh water fish. Passed April 23,
1862.
Laws of 1862, ch. 474.
24. An act for the better regulation and discipline
of the New York State Inebriate Asylum. Passed
April 14, 1864.
Laws of 1864, ch. 196.
25. An act in relation to the sale, use and disposi-
tion of butts, hogsheads, barrels, casks or kegs, used
by the manufacturers of malt liquors. Passed April
22, 1864.
Laws of 1864, ch. 276.
26. An act to amend an act entitled "an act to
amend an act entitled 'an act to establish a metro-
politan police district and to provide for the govern-
ment thereof,' passed April 15, 1857," passed April
10, 1860. Passed April 25, 1864.
Laws of 1864, ch. 403.
27. An act to revise and consolidate the general
acts relating to public instruction. Passed May 2,
1864.
Laws of 1861, ch. 555.
28. All acts passed since the first day of January,
1864, to declare, protect or enforce any right of per-
sons in the military or naval service of the United
States or to redress or punish wrongs sustained by
such persons.
See Laws of 1864, ch. 2; Ibid., ch. 253; Ibid., ch.
390; Ibid., ch. 391.
It will be observed that no statutes whatever, are re-
pealed by the foregoing provisions. The various provisions
of our statute law declaring crimes or imposing criminal
OF THE STATE OF NEW YORK.
287
punishments, are in numerous instances so interwoven
with provisions relative to civil rights and remedies, that
a repealing act which should exhibit the proposed changes
in the law in the form of designating the acts or parts of
acts repealed, would be almost impracticable. A mere
provision in general terms that all inconsistent provisions
should be deemed repealed, leaves the whole effect and
operation of the Code open to judicial construction. The
particular operation of the Code, upon the existing sta-
tutes, might doubtless be exhibited in detail, by a chapter
enumerating acts or parts of acts which are repealed, in
full, and amending sections of existing statutes which con-
tain provisions relative to criminal law, combined with
others. The great difficulty of doing this without dis-
turbing civil rights founded upon the existing statutes,
and the amount of space required in the printed Code,
for such a chapter, are the objections to this method,
The Commissioners have, therefore, made no provision in
the Penal Code for repeal of laws defining crimes; though
some acts relative to prisons are repealed by section 1070.
They have provided by section 2, that, from the time when
the Code takes effect, no person shall be punished crimi-
nally, except as provided by this Code, or by some of the
statutes which it specifies as continuing in force. In the
section in the text they enumerate the statutes which are
intended to be continued. The effect is that while other
statutes will remain unrepealed, and in full effect, so far
as past transactions or civil rights or remedies are con-
cerned, courts of criminal jurisdiction will be forbidden
to enforce them, in so far as before the adoption of the
Code they authorized criminal punishments.
The acts enumerated in the above section are for the
most part either local or special in their character, and
proper to be continued as separate laws, rather than to
be incorporated in either of the proposed Codes, or acts
which have been passed since the other Codes now before
the legislature were reported, but which relate to subjects
embraced within the scope of some one of the Codes,
and the valuable provisions of which should be incorpo-
rated with the Code to which they belong wherever it is
finally reviewed by the legislature. In addition to the
above mentioned statutes there are laws relative to special
subjects, which it is designed to retain in a separate form
and which will contain some provisions of a penal nature
but not of general interest or application. These are the
Health Laws, the School Laws, the Poor Laws, the Fiscal
Laws, the Laws relative to the Inspection of Merchan-
dise, &c.
288
THE PENAL CODE
TITLE XIX.
OF THE GOVERNMENT AND DISCIPLINE OF STATE
PRISONS AND COUNTY JAILS, AND OF THE CON-
DUCT AND TREATMENT OF PRISONERS THEREIN.
CHAPTER
I. Designation of the different state prisons and county
jails, and general regulations respecting them, and
the custody and removal of prisoners.
II. Inspectors of state prisons.
III. General provisions relative to officers of the various
state prisons.
IV. The wardens.
V. The matron of the female department of the Sing
Sing prison, and assistant matrons.
VI. The clerks.
VII. The keepers.
VIII. The physicians.
IX. The chaplains.
X. The instructors and instructress.
XI. The guards.
XII. The military companies at Sing Sing and Auburn.
XIII. The fire company at Auburn.
XIV. The custody, conduct and discipline of convicts.
XV. The employment of convicts.
XVI. Commutation of sentences.
XVII. The custody, conduct, discipline and employment of
prisoners in county jails.
XVIII. Inspection of county jails.
XIX. Custody of insane prisoners.
XX. General provisions applicable equally to state prisons
and county jails.
CHAPTER I.
DESIGNATION OF THE DIFFERENT STATE PRISONS
AND COUNTY JAILS, AND GENERAL REGULATIONS
RESPECTING THEM, AND THE CUSTODY AND RE-
MOVAL OF PRISONERS.
SECTION 787. Designation of the state prisons.
788. Designation of the county jails.
789. Convicts, how to be sentenced.
1
OF THE STATE OF NEW YORK.
289
SECTION 790. Female convicts.
791. Reports of male and female departments.
792. Compensation for transportation.
793. Account to be rendered on delivering convicts.
794. How it is to be certified.
795. And how paid.
796. What convicts must be transported together.
797. Removal of convicts where number is excessive
798. Expenses of such removal.
799. Manner of removal.
800. Intercourse with other persons prohibited.
801. Removal of convicts under seventeen.
802. Manner of such removal.
803. Expenses of such removal.
804. Removal of convicts in case of fire.
805. Removal of convicts in case of pestilence.
806. Removal of convicts in case of riot, &c.
807. Solitary cells to be erected.
808. Lands at Clinton prison.
809. Rooms required in county jails.
810. Sheriff may remove prisoners in county jails
811. Removal in case of fire.
812. Removal in case of pestilence.
813. Removal in case of riot, &c.
814. Place of removal declared the county jail for the time being.
815. This title applicable to United States prisoners.
816. United States prisoners to be received into county jails.
817. United States convicts to be received into state prisons and
county jails.
818. Punishment for escapes.
819. Punishment of officers for violation of duty.
tion of the
state
prisons.
$ 787. There are maintained for the security and Designa
reformation of convicts, in this state, three state
prisons; one at Sing Sing, in Westchester county, at
which is established a separate department for female
convicts; one at Auburn, in the county of Cayuga;
and one at Dannemora, in the county of Clinton; which
prisons are respectively denominated the Sing Sing
prison, the Auburn prison, and the Clinton prison.
See Laws of 1847, ch. 460, § 29.
S 788. The common jails in the several counties of
this state are kept by the sheriffs of the counties in
which they are respectively situated, and are used as
prisons:
Designa-
tion of the
county jails
37
290
THE PENAL CODE
Convicts,
how to be
1. For the detention of persons, duly committed,
in order to secure their attendance as witnesses in
any criminal case;
2. For the detention of persons charged with
crime, and committed for trial;
3. For the confinement of persons duly committed
for any contempt or upon civil process or by other
authority of law; and,
4. For the confinement of persons sentenced to
imprisonment therein, upon conviction for crime.
Laws of 1847, ch. 460, § 1.
S789. All male convicts sentenced in the first and
sentenced. second judicial districts to an imprisonment in a
state prison shall be confined in the state prison at
Sing Sing, and all so sentenced in the fifth, sixth,
seventh and eighth judicial districts, in the state
prison at Auburn, and all so sentenced in the other
judicial districts, in the Clinton state prison.
Female
convicts.
Reports of
male and
female de-
partments.
Compensa-
tion for
See Laws of 1847, ch. 460, § 84. The latter part of
this section, providing for the removal of convicts from
one state prison to another, is omitted; for the reason
that regulations upon that subject are contained in sub-
sequent sections.
$790. All female convicts sentenced in any county
in the state to imprisonment in a state prison, must
be confined in the female department of the Sing
Sing prison.
Laws of 1847, ch. 460, § 85.
$791. The annual and all other reports and esti-
mates of earnings and expenditures of the male and
female departments of the state prisons, must be
made out separately and distinctly, the one from the
other.
Laws of 1860, ch. 283, § 1.
$ 792. The compensation allowed to sheriffs for
transporta- transporting convicts to the state prisons, shall not
exceed the following rates:
tion.
For conveying a single convict, for each mile from
1
}
291
OF THE STATE OF NEW YORK.
the county prison from which such convict shall be
conveyed, thirty-five cents.
For conveying two convicts, for each such mile,
forty-five cents;
For conveying three convicts, fifty cents;
For conveying four convicts, fifty-five cents;
For conveying five convicts, sixty cents;
For all additional convicts, such reasonable allow-
ance as the comptroller may think just.
The above allowance, with one dollar per day for
the maintenance of each convict whilst on the way
to the state prison, but not exceeding one dollar for
every thirty miles travel, shall be in full of all charges
and expenses in the premises.
See Laws of 1849, ch. 123,-§ 1. Section 2 repeals
section 2 of Laws of 1847, ch. 497.
$ 793. On the delivery of any convict to the keeper
of a state prison, the sheriff or other person having
charge of such convict must make and render to the
warden, keeper or clerk of the prison, an account of
the number of miles necessarily traveled in coming,
estimated by the shortest practicable route, and of
the sums actually expended for the maintenance
of the convicts, while coming.
See Laws of 1847, ch. 497, § 3. The commissioners
suggest that instead of the existing mode of transport-
ing convicts, the sheriff be required to notify the proper
warden, and that it be made a part of his official duty
to send for the convicts.
Account to
on deliver
be rendered
ing con-
victs.
be certified.
S794. The account required by the last section How it is to
must be certified under oath by the sheriff or other
person rendering the same to be correct. And there
must be added to such account the certificate of
either the warden, keeper or clerk of such prison,
setting forth the number of convicts so delivered,
and the distance from such prison to the place of
their conviction.
Taken from Laws of 1847, ch. 497, § 3. So much of
this section as provides that the "keeper of the respec-
292
THE PENAL CODE
And how
paid.
What con-
victs must
be trans-
ported
together.
Removal of
convicts
ber is ex-
cessive.
tive prison * * * are hereby authorized to adminis-
ter the oath above required"—is omitted; for the reason
that the powers conferred on inspectors by section 843
and on clerks and wardens by section 920 of this Code, to
administer oaths, are deemed amply sufficient for the pur-
poses required.
$795. The account, certified and attested as pro-
vided in the last section, shall be paid by the warden,
or certified by him to be paid by the comptroller,
according to the provisions of section 881.
Substituted for Laws of 1847, ch. 497, § 4.
$ 796. All the convicts who are sentenced to impri-
sonment in the same state prison, at one session of a
criminal court, must be transported thither at the
same time, unless there are more than five and the
court expressly direct otherwise.
Ibid.
$ 797. Whenever, in the opinion of the inspectors
where num- of state prisons, it appears that there is a greater
number of convicts in any state prison that can well
be accommodated therein, or that such convicts can-
not be employed profitably to the state, the inspec-
tors may cause as many of such convicts as they
deem proper to be removed, by the warden of such
prison, to either of the other state prisons which the
inspectors may designate. But the inspectors must
not, in such case, reduce the number of convicts in
any prison below one hundred.
See Laws of 1849, ch. 132, § 1. This provision is con-
sidered sufficient to provide for all cases of overstocking
the state prisons; and the more restricted provision of
Laws of 1860, ch. 399, § 15, is therefore omitted. That
provision is as follows:
"Whenever there shall be more convicts in any state
prison than there are separate cells for the accommoda-
tion of each, and there are vacant cells in either of the
other prisons, the inspectors of state prisons may order
the agent and warden of the prison in which such con-
victs are confined to order the transfer of such number
of convicts as there shall be vacant cells in the prison to
which they are transferred. In selecting convicts so to
OF THE STATE OF NEW YORK.
293
be transferred the agent and warden shall take those
convicts last received at the prison."
of such re-
$ 798. All necessary expenses of any removal of Expenses
convicts authorized by the last section, or by sections moval.
804, 805, or 806, form a part of the incidental expenses
of the prison from which such convicts are removed.
They must be audited by the comptroller, and paid
by the warden of such prison out of any moneys in
his hands belonging to the state and applicable to the
expenses of the prison.
See Laws of 1847, ch. 460, § 90; Laws of 1849,
ch. 132, § 2.
removal,
$799. Whenever a removal of convicts from one Manner of
state prison to another shall be ordered, the warden
must cause the convicts so to be removed to be suf-
ficiently chained in pairs, and transported to the prison
to which they shall be sent, and must deliver such
convicts, with the certified copies of their sentences,
to the warden of the prison to which they shall be
removed, the warden of which prison must receive
and keep them according to their sentences, as if they
had been originally committed to such prison.
Laws of 1847, ch. 460, § 88.
with other
prohibited.
$ 800. The persons so employed to conduct such Intercourse
convicts, must prohibit all intercourse between them persons
and other persons, and may inflict any reasonable and
necessary correction upon the convicts for disobedi-
ence or misconduct in any respect.
Laws of 1847, ch. 460, § 89.
convicts
seventeen.
S 801. The inspectors may, by warrant, under their Removal of
hands, direct any convict, under the age of seventeen under
years, who is confined in the Sing Sing prison, to be
removed to the House of Refuge in the city of New
York; and any like convict who is confined in the
Auburn or Clinton prisons to be removed to the
Western House of Refuge in the city of Rochester.
See Laws of 1847, ch. 460, § 91; Laws of 1850,
ch. 24, § 2.
294
THE PENAL CODE
such re-
moval.
Manner of $ 802. Whenever the inspectors of state prisons
shall, pursuant to the last section, direct the removal
of any convict to a house of refuge, the wardens of
the prison in which such convict is confined must
cause him to be conveyed to the house of refuge desig-
nated in the warrant, to be there confined, according
to the rules and regulations of such house of refuge,
until the expiration of the term for which such con-
vict was sentenced.
Expenses of
such re-
moval.
Removal of
convicts in
See Ibid.
S803. The expenses of any removal authorized by
the last section may be the same as are allowed to
sheriffs for like services; and form a part of the inci-
dental expenses of the prison from which such convict
is removed. The expenses of such removal must be
first paid out of any funds of the prison not otherwise
appropriated, and must be certified by the warden.
It is also the duty of the warden of the prison to make
out a certificate of such expenses, and transmit the
same, or a counterpart thereof, to the sheriff in each
county in which any such convicts were sentenced;
and the sheriffs receiving such certificate must present
the same to the board of supervisors of the county, at
the first annual meeting thereof. The board of super-
visors must raise the amount specified in such certifi-
cate, as a county charge, and the treasurer of the
county, within ten days after receiving the amount,
must remit the same to the warden of the prison.
See Laws of 1847, ch. 460, §§ 91, 92, 93.
S 804. Whenever, by reason of any state prison being
case of fire. on fire, or any building contiguous or near to any state
prison being on fire, there is reason to apprehend
that the convicts confined in such prison may be in-
jured or endangered by such fire, or may escape, the
warden may, in his discretion, remove such convicts.
to some safe and convenient place, and there confine
them so long as may be necessary to avoid such
OF THE STATE OF NEW YORK.
295
danger; and such removal shall not be deemed an
escape of such convicts.
$ 805. Whenever any pestilence or contagious dis-
ease breaks out among the convicts in either of the
state prisons, or in the vicinity of either, of which
the certificate of the physician shall be conclusive
evidence, the inspector in charge of such prison may
cause the convicts confined therein to be removed
to some suitable place of security, where such of
them as may be sick shall receive all necessary care
and medical assistance. Such convicts must be
returned as soon as may be to the prison from which
they were taken, to be confined until the expiration
of their respective sentences.
See Laws of 1847, ch. 460, §§ 94, 95.
S 806. Whenever, from any riot or civil commotion,
from any insecurity of any state prison, or from any
other cause, it becomes absolutely necessary for the
safe keeping of the convicts confined in any state
prison, that they should be removed therefrom, the
inspector in charge of such prison may remove such
convicts to some safe and convenient place, and there
confine them so long as the necessity continues; and
such removal and confinement shall not be deemed
an escape of such prisoners.
S807. It is the duty of the inspectors to cause to
be erected, at as early a period as practicable, in each
of the state prisons of this state, separate rooms or
cells, not less in their dimensions, in the clear, than
nine hundred and ninety-six cubic feet, as follows:
such number, not exceeding twenty, as the said
inspectors shall deem necessary and expedient, at the
Sing Sing prison; and, under like restrictions, not
exceeding ten at the Auburn prison, and not exceed-
ing five at the Clinton prison. Such cells must be
constructed of stone, in a manner that shall render
Removal of
convicts in
case of pes-
tilence.
Removal of
case of riot,
convicts in
&c.
Solitary
cells to be
erected.
296
THE PENAL CODE
Lands at
Clinton pri-
son.
them secure, for the purposes mentioned in section
980.
Laws of 1847, ch. 460, § 44. The duty is here ren-
dered imperative instead of being left to depend on the
amount of the prison funds, as under the existing law.
S808. All uncultivated lands now or hereafter
belonging to this state, situated within ten miles of
the Clinton prison, shall be withdrawn from sale, and
retained by the state for the purpose of furnishing
fuel for the manufacture of iron by the convicts in
such prison.
Taken from Laws of 1847, ch. 460, § 138, substituting
ten miles for twenty. This appears to be what was in-
tended by the act of 1851, ch. 259, § 4.
The original act authorizing the establishment of the
Clinton prison (Laws of 1844, ch. 245), contained no pro-
vision reserving lands around it.
On April 16, 1845, however, an act was passed entitled
"an act to amend an act in relation to state prisons,
passed May 1, 1844," which contained the following pro-
vision:
"All uncultivated lands belonging to the state of New
York, or which may hereafter become the property of
said state, and which shall be situated within twenty
miles of said prison, shall be withdrawn from sale and
shall be retained by the state for the purpose of furnish-
ing fuel for the manufacture of iron by the convicts of
said prison."
Laws of 1845, ch. 70, § 6.
This section, with other parts of the acts of 1845, was
repealed by the general repealing section (160) of the act
of 1847, ch. 460 (as will appear by consulting that sec-
tion, which is reprinted in the note to section 1070 of
this Code). A provision in words identically the same
(except one wholly unimportant variation) with section
six of the act of 1845, was inserted as section 138 of the
act of 1847.
In 1851, an act was passed "amendatory of section six
of chapter 70 of the Laws of 1845,"-the section pre-
viously repealed. It provided that:
"The sixth section of the act entitled, 'An act to
amend an act in relation to state prisons, passed May 1st,
1844,' passed April 16, 1845, is hereby amended so as to
read as follows:
"All uncultivated lands belonging to the state of New
York, or which may hereafter become the property of
said state, and which shall be situated within ten miles.
of the Clinton prison, shall be withdrawn from sale, and
shall be retained by the state for the purpose of furnish-
OF THE STATE OF NEW YORK.
297
?
ing fuel for the manufacture of iron by the convicts in
said prison.'".
Laws of 1851, ch. 259, § 4.
The reference should have been to section 138 of chap
ter 460 of the Laws of 1847, as the section amended.
$809. Each county jail must contain a sufficient
number of rooms to allow all persons belonging to
either one of the following classes to be confined
separately and distinctly from persons belonging to
either of the other classes:
1. Persons committed on criminal process, and
detained for trial;
2. Persons already convicted of crime and held
under sentence;
3. Persons detained as witnesses, or held under
civil process, or under an order imposing punishment
for a contempt;
4. Males separately from females.
Substituted for Laws of 1847, ch. 460, § 2, which is as
follows: "Each county prison shall contain:
"1. A sufficient number of rooms for the confinement of
persons committed on criminal process and detained for
trial, separately and distinct from prisoners under sentence.
"2. A sufficient number of rooms for the confinement
of prisoners under sentence.
"3. A sufficient number of rooms for the separate con-
finement of persons committed on civil process, for con-
tempt, or as witnesses."
This language is obscure, in several respects. In
particular it will be noticed that unless the word "or"
may be supplied by way of construction between the
words "on civil process," and the words "for contempt,"
no provision is made for the confinement of a person
held under civil process, separately from persons confined
under sentence upon conviction. And if the word "or"
be so supplied there is room for a question whether, upon
the literal language of the section, a person who is held
under sentence upon a conviction on indictment for con-
tempt must not be confined separately from other convicts.
In existing laws, the phrase "county prison” is usually
employed in statutes relating to prison discipline; but
"county jail" is most frequently used in sections defin-
ing crimes and their punishment. For the sake of
38
Rooms re-
county jails.
quired in
298
THE PENAL CODE
Sheriff may
remove pri-
soners in
county jails.
Removal in
case of fire.
Removal in
case of pes-
tilence.
uniformity in phraseology, the words "county jail" have
been used throughout this Code.
S 810. The sheriff of any county of this state in
which there is or shall be established more than one
jail may confine the prisoners in his custody in either
of such jails, and may remove them from one jail to
another, within the county, whenever he deems it
necessary for their safe keeping, or for their appear-
ance at any court.
This section, and the two which follow, are founded
upon the provisions of 2 Rev. Stat., 430, §§ 24, 25 and
26; which by Laws of 1847, ch. 460, § 12, are extended
to criminal prisoners.
S 811. Whenever, by reason of any jail being on
fire, or any building contiguous or near to a jail
being on fire, there is reason to apprehend that the
prisoners confined in such jail may be injured or
endangered by such fire, or may escape, the sheriff
or keeper of such jail may, in his discretion, remove
such prisoners to some safe and convenient place,
and there confine them, so long as may be necessary
to avoid such danger; and such removal and confine-
ment shall not be deemed an escape of such prisoners.
2 Rev. Stat., 430, § 25.
S 812. Whenever any pestilence or contagious dis-
ease breaks out in any jail, or in its vicinity, and the
physician to such jail certifies that such pestilence or
disease is likely to endanger the health of the pri-
soners confined therein, the county judge of the
county in which such jail is situated, or in the city
and county of New York, the mayor or record-
er, and any alderman of that city, and in the city
and county of Albany, the mayor or recorder, and
any alderman of the city of Albany, shall, in writing
designate some safe and convenient place within
such county, or the jail of some contiguous county,
as a place of confinement for such prisoners, which
designation shall be filed in the office of the clerk of
OF THE STATE OF NEW YORK.
299
the county. The sheriff of such county is thereupon
authorized to remove such prisoners to the place or
jail so designated, and there confine them, until they
can be safely returned to the jail from which they
were taken.
See Rev. Stat., 430, § 26, as modified by Laws of
1847, ch. 280, § 29.
case of riot,
&c.
$813. Whenever, from any riot or civil commo- Removal in
tion, from any insecurity of any county jail, or from
any other cause, it becomes actually necessary for
the safe keeping of the prisoners confined in any
county jail that they should be removed therefrom,
the sheriff or keeper of such jail may remove such
prisoners to some safe and convenient place, and
there confine them, so long as the necessity con-
tinues; and such removal and confinement shall not
be deemed an escape of such prisoners.
This provision is new.
moval de-
county jail
S814. Any place to which the prisoners in any Place of re-
jail shall be removed, pursuant to the last four sec-clared the
tions, shall, during the time of the confinement of such
prisoners therein, be deemed the jail of the county.
2 Rev. Stat., 430, § 27.
S 815. All provisions of this title relative to the
mode of confining prisoners and convicts, apply to
persons committed by any court or officer of the
United States, in the same manner as if they were
committed by a court or officer of this state.
See Laws of 1847, ch. 460, § 16.
S816. It is the duty of the keeper of each county
jail to receive into the jail every person duly com-
mitted thereto, upon charge of an offense against
the United States, by the president of the United
States, or by any court or officer of the United
States, and to confine such person in the jail until he
is duly discharged; the United States supporting
such person during his confinement.
for the time
being.
This title
to United
soners.
applicable
States pri-
United
States pri-
soners to be
received in-
to county
jails.
&
300
THE PENAL CODE
United
States con-
victs to be
See Laws of 1847, ch. 460, § 16. The commissioners
have inserted the words "by the president of the United
States," which are not found in the existing law, in order
that the section may conform to the corresponding pro-
vision of section 818. They recommend that the legisla-
tion of this state, relative to imprisonment, be adapted
to carry into effect the extraordinary powers of arrest
recently conferred upon the president by act of congress;
in the full belief that those powers will be modified or
withdrawn, whenever it is perceived that a necessity for
them no longer exists.
S 817. It is the duty of the respective wardens and
received in- keepers of each of the state prisons and county jails,
to state pri-
sons and
county
jails.
Punish-
ment for
escapes.
to receive into their respective prisons and jails, and
safely to keep therein, subject to the discipline of
such prison or jail, any criminal convicted of any
offense against the United States, sentenced to im-
prisonment therein by any court of the United
States, sitting within this state, until such sentence
be executed, or until such convict shall be discharged
by due course of law; the United States supporting
such convict, and paying the expenses attendant
upon the execution of such sentence.
Laws of 1847, ch. 460, § 145.
S 818. In case any prisoner committed to either of
the prisons by the president of the United States, or
by any court or officer of the United States, shall
escape from the custody of any warden or keeper to
whom such convict may have been so committed, he
shall be liable to the like punishment as if he had
been committed by virtue of a commitment or con-
viction under the authority of this state; and any
expenses incurred in searching for, or apprehending
such convict shall be a proper charge against the
government of the United States.
Taken from Laws of 1860, ch. 399, § 14, where it is
stated as an amendment to section 156 of the act of
1847, ch. 460. By an examination of that act it will be
1
OF THE STATE OF NEW YORK.
301
obvious that the reference to section 156 is an error;
and that section 146 is the one intended to be amended.
That section is as follows:
"In case any such prisoner shall escape or attempt to
escape out of the custody of any keeper to whom such
prisoner may have been so committed, he shall be liable
to the like punishment as if he had been committed by
virtue of a commitment or conviction under the authority
of this state."
The commissioners present the above enactment that
they may not be supposed to intend a change in the law
by omitting it; but they consider the provision for pun-
ishing the escape unnecessary under the provisions
rendering escapes punishable, reported in chapter iii of
title IX of this Code; and if it were desirable to be
retained, it should be transferred to that chapter.
ment of
violating
S 819. Every warden or keeper or other officer of Punish-
any prison or jail, to whom such prisoner may have officers for
been committed, shall be liable to the like penalties duty.
and punishment, for any neglect or violation of duty
in respect to the custody of such prisoner, as if such
prisoner had been committed by virtue of a commit-
ment or conviction under the authority of this state.
See Laws of 1847, ch. 460, § 147.
CHAPTER II.
INSPECTORS OF STATE PRISONS.
SECTION 820. Inspectors, how chosen.
821. How removed.
822. When to enter upon their duties.
823. To take oath of office.
824. Election of president.
825. Each inspector to take special charge of one prison.
826. Visitation of prisons.
827. What matters must be inquired of by the inspectors.
828. They may require reports.
829. They may make regulations for the prisons.
830. And for the female department of the Sing Sing prison.
831. They must inquire into alleged improper conduct.
832. They must keep minutes of their proceedings.
833. They must make an annual report.
834. They must furnish abstracts of returns made to them.
835. They must cause orders, &c., adopted by them to be recorded.
836. They may employ artisans from abroad.
837. They must prescribe the provisions for convicts.
302
THE PENAL CODE
Inspectors,
how chosen.
How re-
moved.
When to
enter upon
SECTION 838. They must transmit warden's account to comptroller.
839. They must cause property of the state to be valued.
840. Their duty in appointments.
841. They must keep armories in repair.
842. Power of president to summon witnesses.
843. Power of inspectors to administer oaths.
844. Duties of individual inspectors.
845. Examination of books of storekeepers.
846. Inspectors can hold no other prison office or contract.
S 820. The state prisons are under the charge and
superintendence of three inspectors, chosen at a
general election, according to the provisions of the
fourth section of the fifth article of the constitution
of this state.
See Laws of 1847, ch. 460, § 30.
S 821. The governor has power to remove any
inspector, so elected, for misconduct or malversation
in office; but must first give to such inspector a copy
of the charge against him, and an opportunity of
being heard in his defense.
Laws of 1847, ch. 460, § 31.
822. Each inspector shall enter upon the duties
their of his office on the first day of January next follow-
duties.
ing his election.
To take
oath of
office.
Recommended as a substitute for Laws of 1847, ch.
460, 32, which is as follows:
"The inspectors elected at the last general election
shall enter upon the duties of their office on the first
day of January, eighteen hundred and forty-eight, and
each inspector to be hereafter chosen shall enter on the
duties of his office on the first day of January next fol-
lowing his election."
$823. Each inspector, before entering upon the
duties of his office, must take and subscribe the oath
of office, prescribed by the constitution of this state.
Such oath may be taken and subscribed before any
officer authorized by law to take and administer
oaths, and must be filed in the office of the secretary
of state.
This provision is taken from Laws of 1847, ch. 460,
§ 2, and is reported only in order that an intention to
1
OF THE STATE OF NEW YORK.
303
change the existing law may not be inferred from its
being omitted. No special provision on the subject of
the official oath of the inspectors seems necessary. The
constitution itself provides (Const. of 1846, art. xii), that
"members of the legislature and all officers, executive
and judicial, except such inferior officers as may be by
law exempted, shall, before they enter on the duties of
their respective offices, take and subscribe the following
oath," &c. In the absence of any provision of law ex-
empting inspectors from taking the oath of office, the
obligation imposed upon them to do so is clear. The
proper place for filing the oath seems pointed out with
sufficient certainty by the provisions of 1 Rev. Stat., 119,
§ 24; which are substantially embodied in Rep. Pol.
Code, § 215.
president.
S 824. The inspectors must hold a joint meeting Election of
on the first Wednesday in each year, at the state
prison at Sing Sing; and at such meeting must
choose one of their number as president of the board
for the ensuing year. In case of the absence of such
president from any meeting of the board, one of the
other members shall preside at such meeting, and
shall have all the powers of president.
S825. The inspectors must, at the meeting pre-
scribed in the last section, assign to each inspector
the special charge and supervision of one of the state
prisons, to be designated, for the ensuing four months;
and they must make a similar designation at the
commencement of each four months' term thereafter.
But no inspector can be assigned to, or have the
special charge of the same prison during the next
eight months.
This and the last section are founded on Laws of 1854,
ch. 240, § 1, as amended Laws of 1860, ch. 399, § 5; which
is as follows:
"The inspectors shall hold their first joint meeting on
the first Wednesday of January in each and every year,
at the state prison at Sing Sing, and at such meeting,
shall choose one of their number as president of the
board for the ensuing year, and shall assign to each
inspector the special charge and supervision of one of
the state prisons, to be designated, for the ensuing four
months of the year; and they shall make a similar
assignment and designation at the commencement of
Each in-
charge of
spector to
take special
one prison.
304
THE PENAL CODE
Visita-
tion of
prisons.
What mat-
ters must be
by the in-
spectors.
each four months' term thereafter; but no inspector
shall be re-assigned to, or have the special charge of
the same prison for the next eight succeeding months."
S 826. The inspectors must visit jointly each of the
state prisons that now are, or hereafter may be,
established in this state, at least four times in the
year.
See Laws of 1847, ch. 460, § 34, subd. 1. This and
several sections following are founded on the various
subdivisions of the section referred to. In that section
the powers and duties of the inspectors are stated in a
series of subdivisions, introduced by the general words,
"the inspectors, &c., shall have the power, and it shall
be their duty." As some of the powers conferred are
discretionary, and are not coupled with an absolute duty,
the commissioners have preferred to distinguish theso
from duties imperatively imposed. They have accord-
ingly stated the powers and duties of inspectors in dis-
tinct sections; introducing each by the words "the
inspectors must," or "the inspectors may," according as
they understand the intent of the law to be, to impose
an absolute, imperative duty, or to vest a discretionary
power.
S 827. The inspectors must examine and inquire
inquired of into all matters connected with the government,
discipline and police of each prison, the punishment
and employment of the convicts therein confined,
the money concerns and contracts for work, and the
purchases and sales of the articles provided for each
prison, or sold on account thereof.
They may
require
reports.
They may
make regu-
the prisons.
Ibid., subd. 2.
S 828. The inspectors may, from time to time,
require reports from the warden or other officers of
the prison in relation to any or all of the matters
mentioned in the last section.
Ibid., subd. 3.
S829. The inspectors may make such general regu-
lations for lations for the government and discipline of each
prison, as they deem expedient, not inconsistent with
the laws of this state, and may, from time to time,
alter and amend the same; and, in making such
1
OF THE STATE OF NEW YORK.
305
regulations, it is their duty to adopt such as in their
judgment, while consistent with the discipline of the
prison, shall best conduce to the reformation of
the convicts.
Ibid. subd. 4.
female de-
partment
of the Sing
Sing pri-
son.
S 830. The inspectors may make like regulations, And for the
and alter and amend the same, for the government
and discipline of all female convicts in the female
department of the Sing Sing prison, and may cause
them to be employed as shall conduce to their sup-
port and reformation. They may, by order, from
time to time, prescribe the kind of labor in which
such convicts shall be employed, having due regard
in making such order, to the mechanical interests of
the citizens of the state.
See Ibid., subd. 12; and Laws of 1847, ch. 460, § 73.
They must
alleged im-
inquire into
S831. The inspectors may inquire into any im-
proper conduct which may be alleged to have been
committed by any officer or agent of, or other person duct.
employed in either of the prisons of this state.
See Ibid., subd. 5, as amended Laws of 1855, ch. 552
§ 1. Power to send for persons and papers is conferred
by section 842.
proper con-
They must
keep min-
utes of their
proceed-
S832. The inspectors must keep regular minutes
of their meetings and proceedings at each prison
which they shall visit; which minutes must be en- ings.
tered by the clerk in a book kept for that purpose, in
each of said prisons, and signed by the inspectors.
See Ibid., subd. 6.
They must
make an
report.
S833. The inspectors must make an annual report
on or before the fifteenth day of January, in each annual
year, of the state and condition of each of said
prisons, the convicts confined therein, of the money
expended and received, and generally of all the pro-
ceedings during the past year.
Ibid., subd. 7.
39
306
THE PENAL CODE
They must
furnish
returns
made to
them..
S834. The inspectors must furnish to the legisla-
abstracts of ture, with their respective annual reports, summary
abstracts of all the returns which shall have been
made to them, during the past year, by the warden
or any other officer of each prison; and also a list of
all contracts entered into during the past year for
the employment of convicts, stating what portion of
each contract may have been finished during the
year, any sums of money received thereon, the prob-
able time of its completion, and the amount which
will then remain and become due.
They must
cause
orders, &c.,
them to be
recorded.
Ibid., subd. 8.
S 835. The inspectors must cause all orders, rules
adopted by and regulations adopted by them, and the entries of
their proceedings at each meeting, to be recorded by
the clerk of the prison then visited, and furnish to
each officer of the prison, on his appointment, a
printed copy of the general rules and regulations of
the prison.
They may
employ
artisans
from
abroad.
They must
prescribe
the provi-
sions for
the con-
victs.
They must
transmit
wardens'
Ibid., subd. 9.
S 836. The inspectors may employ artisans from
abroad for the purpose of teaching such new branches
of business in the state prisons as are not pursued
in the state.
Ibid., subd. 10.
S837. The inspectors must prescribe the kinds of
provisions, and the quantities of each kind, that shall
be inserted in each contract for the supply of provi-
sions to each state prison, and may authorize each
contract to be made for the term of one year, or for
any less term, in their discretion, or may cause such
provisions to be furnished by the warden, in their
discretion.
Ibid., subd, 11. Subdivision 12 is omitted for the rea-
son that its provisions appear fully embraced by the
various sections of this title.
S838. The inspectors must transmit to the comp-
troller of the state, on or before the first day of
OF THE STATE OF NEW YORK.
307
comptrol.
January in each year, the account and inventory account to
rendered to them by the warden of each state prison, ler.
with such observations and remarks thereon, as they
may deem necessary to enable the comptroller to
understand the same, and to correct any errors that
may be discovered therein.
Ibid., subd, 13.
S 839. The inspectors must cause an estimate to
be made of the value of the goods, and other pro-
perty of the state, of which an inventory has been
rendered to them, by the warden of each prison,
which estimate must be made under oath by two or
more competent and disinterested persons to be ap-
pointed for that purpose by the inspectors, and must
be transmitted by the inspectors to the comptroller,
with the inventory to which it relates.
Ibid., subd. 14.
They must
property of
be valued.
cause the
the state to
in appoint-
S 840. The inspectors must select, as far as practi- Their duty
cable, such persons, in appointing keepers to each ments.
prison where manufacturing is carried on by the
state, as are qualified to instruct the convicts in
the trades and manufactures thus prosecuted in such
prison.
Ibid., subd. 15.
S 841. The inspectors must keep in repair the
armories hereafter erected or used at Sing Sing or
Auburn for the use and convenience of the company
of guards attached to the prison; and the expense
attending such repairs shall be paid out of the funds
of the prison.
Laws of 1847, ch. 460, § 126.
They must
keep armo-
ries in
repair
Power of
president
witnesses.
S 842. In any investigation or inquiry lawfully
made by the board of inspectors, the president of to summor
such board may issue subpoenas to compel witnesses
to attend and testify, or to produce books and papers
or other instruments of evidence, before such board,
in the same manner, and with like effect, and with
the same power to punish for disobedience, as is or
308
THE PENAL CODÉ
:
Power of
inspectors
ter oaths.
may be authorized by law in respect to trials before
justices of the peace.
$ 843. Either inspector may administer an oath or
to adminis- affirmation to, or take an affidavit of any person
voluntarily consenting thereto, in or relating to any
matter connected with the affairs of any prison.
And in any investigation or inquiry lawfully made
by any inspector, he may issue subpoenas to compel
witnesses to attend and testify, or to produce books
and papers or other instruments of evidence before
him, in the same manner, and with like effect, and
with the same power to punish for disobedience, as
is, or may be authorized by law in respect to trials
before justices of the peace.
This and the preceding section are recommended as
substitutes for the existing provisions of Laws of 1847,
ch. 460, § 34, subd. 5, as amended Laws of 1855, ch.
552, § 1; Laws of 1849, ch. 133, § 1, and Laws of 1849,
ch. 133, § 2, as amended Laws of 1854, ch. 240, § 10.
Those provisions are as follows:
"The inspectors shall have power to inquire into any
improper conduct," &c., "and for that purpose to issue
subpoenas to compel the attendance of witnesses, and
the production before them of books, writings and papers,
in the same manner, and with like effect, and subject to
the same penalties for disobedience, as in cases of trial
before justices of the peace, and to examine any person
or persons who may be brought before them as such
witnesses."
Laws of 1847, ch. 460, § 34, as amended Laws of 1855,
ch. 552, § 1.
"The president of the board of inspectors of state
prisons shall have power to administer oaths and to take
affidavits in all matters pertaining to the fiscal affairs,
business transactions, discipline or government of said
state prisons."
Laws of 1849, ch. 133, § 1.
"In like manner, any inspector of state prisons may
administer oaths, and take affidavits in all matters relat·
ing to the affairs of the state prison under his charge,
and for that purpose shall have power to issue subpœnas
to compel the attendance of witnesses, and the pro-
duction before him of books, papers and writings, in
the same manner, with the like effect, and subject to the
same penalties for disobedience, as in cases of trial before
OF THE STATE OF NEW YORK.
309
justices of the peace, and to examine any person or per-
sous who may be brought before him as such witnesses."
Laws of 1849, ch. 133, § 2, as amended Laws of 1854,
ch. 240, § 10.
These provisions, it will be seen, in effect, vest the
power to issue subpoenas to witnesses to attend before
the board, in the board as a body. The commissioners
propose that it be vested in the president, as the proper
person actually to exercise it. The existing law confines
the power of an inspector in taking voluntary oaths, to
those which relate to the prison under his charge. No
reason is perceived why a voluntary oath relative to the
affairs of any prison may not be taken before any inspec-
tor.
individual
S844. Each inspector must spend at least one Duties of
week at the prison assigned him, at least once in inspectors.
each month, which shall be within the first fifteen
days of the month, except in the months when the
quarterly meetings occur; and at that time must
diligently examine and inquire into the condition of
such prison and give such instructions in writing, for
its government and discipline, being consistent with
the laws of this state and the general regulations
established by the inspectors, as he deems necessary
and expedient. No inspector can draw his salary,
until he has made and filed with the comptroller an
affidavit that he has performed such duty. He must
keep a journal of his proceedings at each monthly or
other visitation, and report the same to the board of
inspectors at their first joint meeting thereafter.
Such journal shall also be entered by the clerk in the
book of the proceedings of the board of inspectors
kept in the prison to which the journal relates.
Laws of 1847, ch. 460, § 35, as amended Laws of
1860, ch. 399, § 1.
S845. The inspector in charge at each prison must
examine the books of the store keeper or kitchen
keeper, and compare the books kept by him with the
original bills taken by the warden at the time of pur-
chasing the goods, and as they agree or disagree,
must certify on the books accordingly.
See Laws of 1855, ch. 552, § 4.
Examina-
books of
er.
tion of
store keep-
310
THE PENAL CODE
Inspector
can hold no
other pri-
son office
S846. No inspector can hold any other appoint-
ment connected with any prison, be interested directly
or contract. or indirectly in any contract for the employment of
any convicts, or the supply of provisions, or the
purchase of materials, for any prison.
Laws of 1847, ch. 460, § 39.
Designa-
tion of
officers of
the state
prisons.
CHAPTER III.
GENERAL PROVISIONS RELATIVE TO OFFICERS OF THE
VARIOUS STATE PRISONS.
SECTION 847. Designation of officers of the state prisons.
848. Who are not eligible to office at the state prisons.
849. Inspectors may make temporary appointments to fill vacan-
cies.
850. Appointments must be entered in journal.
851. Oath of office.
852. Official bond.
853. Bond, where to be filed.
854. Salaries.
855. How paid.
856. Traveling expenses to be audited and allowed.
857. Officers to support themselves.
858. Officers cannot give evidence of debt.
859. Official reports must be verified.
860. Time of making reports.
861. Officers not to be interested in contracts.
S 847. The inspectors shall appoint the following
officers of the state prisons:
1. One warden of each prison;
2. One principal keeper of each prison;
3. One matron of the female department of the
Sing Sing prison;
4. One clerk of each prison;
5. One chaplain of each prison;
6. Two instructors for each of the prisons at Auburn
and Sing Sing, and one for the Clinton prison;
7. One instructor for the female department of the
Sing Sing prison;
8. One physician of each prison, who must also
perform the duties of surgeon;
OF THE STATE OF NEW YORK.
311
9. One store keeper at Sing Sing prison:
10. One kitchen keeper at Sing Sing prison;
11. One kitchen keeper at each of the Auburn and
Clinton prisons, who must also perform the duties of
storekeeper;
12. So many keepers at each prison as the inspec-
tors deem it expedient to employ; but not exceeding
the proportion of one keeper to twenty-four male
convicts;
13. So many assistant matrons of the female de
partment of the Sing Sing prison as the inspectors
deem it expedient to employ, but not exceeding the
proportion of one assistant matron to twenty-four
female convicts.
See Laws of 1847, ch. 460, § 40, as amended Laws of
1860, ch. 399, § 9.
The act of 1847, authorized the appointment at each
state prison, of an "agent" whose duties were to be
confined exclusively to the financial concerns of the
prison, and of a principal keeper to be denominated a
warden, whose duties were to be exclusively confined to
the government, discipline and police regulation of the
prison. (Laws of 1847, ch. 460, §§ 40, 47, 52.)
In 1854, it was enacted that "the office of warden and
agent of the Auburn and Sing Sing prisons is abolished,
and the duties of agent and warden of each of the said
state prisons, as now prescribed by law, shall be per-
formed by one person, who shall be known as the agent
and warden, and shall receive, in consideration of the
increase of duties prescribed by this act, an additional
compensation of two hundred and fifty dollars per annum,
payable monthly; there shall also be appointed by the
inspector of state prisons for each of the prisons at
Auburn and Sing Sing, some suitable person who shall
be designated and known as principal keeper, and whose
duty it shall be to obey and carry into effect all such
orders and directions as he may receive from the agent
and warden, as to the management and discipline of the
prison, not inconsistent," &c., &c. (Laws of 1854, ch.
240, § 3.)
The commissioners have not observed any statute
abolishing the distinction between the officers of agent
and warden at Clinton prison. It appears, however, by
the report of the prison association of New York, cover-
ing the year 1863, that the distinction is not kept up at
that prison. The committee of the association who
312
THE PENAL CODE
inspected the Clinton prison say, "the officers who are
concerned in the administration of the government and
discipline of the Clinton state prison are the agent and
warden, the principal keeper, seventeen subordinate
keepers and twenty-five guards.
"The agent and warden is the responsible head of the
institution, both in respect of its financial affairs and its
government.
"To the principal keeper are committed the immediate
superintendence of the industries of the prison, and the
exercise of its discipline." (Nineteenth Annual Report of
the Prison Assoc. of N. Y., Albany, 1864, p. 151.)
It would seem, therefore, that no practical reasons
exist requiring the fiscal affairs of either prison to be
directed by a different person from the one entrusted
with the management and discipline of the convicts.
The commissioners have, therefore, provided in the text
for the appointment of a single officer for the perform-
ance of both classes of duties.
No good reason is perceived for retaining the double
name, “agent and warden," to designate the principal
officer of the state prison. This name was employed in
the act of 1854 (ch. 240, § 3), undoubtedly, in order that
the then existing provisions of law in which the separato
duties of the agent and of the warden were separately
stated, might more clearly apply to the newly created
officer whom it was intended to charge with both. The
name warden alone is, however, appropriate to designate
the officer to whom the general charge of a public insti-
tution is committed. Jacobs defines the term to mean
"he that hath the keeping or charge of any persons or
things by office." (Law Dict.) And an examination of the
statutes of other states shows that the term is frequently
used as applicable to a single person charged with the
financial management as well as with the government of
a prison. Thus, in Maryland, the governor biennially
appoints a warden of the Maryland penitentiary, who, in
addition to the government and discipline of the convicts,
is charged with a part of the duties heretofore, in this
state, assigned to the agent. (Md. Code, Pub. Gen. L., 487,
and seq.) In Rhode Island the "warden" of the state
prison appoints subordinate officers, is purveyor of sup-
plies, purchases materials for convict labor and sells the
products thereof, keeps accounts of all expenses, &c., &c.
(Rev. Stat. of R. I., 1857, 583, 584.) In Massachusetts
the "warden" has charge and custody of all convicts in
the state prison, and is required to employ them for the
benefit of the state. He also has the charge and custody
of the prison, with every species of property pertaining
thereto, is treasurer of the prison, receives and pays out
all money granted by the legislature for the support
thereof, and is required to keep accounts of all the pro-
1
OF THE STATE OF NEW YORK.
313
perty, expenses, income, business and concerns of the
establishment. And all contracts on account of the pri-
son are made by him, subject to approval by the inspec-
tors. (Rev. Stat. of Mass., 1860, 872-874.) In Canada
all dealings and transactions on account of the provincial
penitentiary of Canada, and all purchases and contracts
necessary for maintaining and carrying on the establish-
ment are, by law, to be entered into, conducted and
executed by and in the name of the "warden." He may
sue and be sued in matters relating to the penitentiary
by his name of office of "the warden of the provincial
penitentiary." He has entire executive control and man-
agement of all the concerns of the penitentiary; and,
among other duties, designates the employment of con-
victs, makes all purchases, sales and contracts, under
the advice and instructions of the board of inspectors,
keeps accounts of the financial and other transactions of
the prison, &c., &c. (Consol. Stat. of Canada, 1859, 1181-
1184.)
Believing that both usage and convenience recommend
the use of the name "warden" instead of "agent and
warden," now employed in the statute book, the former
has been employed throughout the sections in the text.
This change in the law renders it proper to omit several
provisions found in the present statutes. See note to
section 862.
S848. No person can be appointed to any office in
who are
not eligible
the state
prisons.
a state prison, who is under the age of twenty-one to office at
years, or who is related to either of the inspectors
holding office as such at the time of his appointment,
by consanguinity or affinity within the third degree.
See Laws of 1847, ch. 460, § 38; and Laws of
1863, ch. 465, § 4.
may make
appoint-
ments to
cies.
fill vacan-
S 849. Each inspector may suspend any officer Inspectors
appointed by the board for cause, and may make temporary
temporary appointments to supply any vacancies in
office at the prison under his special charge. Such
appointments shall be in force until the next meet-
ing of the board of inspectors. During such sus-
pension the officer suspended shall not receive any
remuneration whatever. Whenever any inspector
has suspended any officer he must immediately
notify the other inspectors of such suspension, and
of the causes for which such suspension is made,
314
THE PENAL CODE
Such ap-
pointments
must be
entered
and request a meeting of the board to be held within
ten days after such notice is given, for the purpose
of considering the same. Two of the inspectors
attending such meeting shall have power to confirm
or disapprove such suspension.
Laws of 1847, ch. 460, § 36, as amended Laws of ·
1860, ch. 399, § 2.
S850. Every appointment to office made by an
inspector must be by him immediately entered in
in journal. the journal of his proceedings kept at the prison
where such appointment is made, and must specify
the particular vacancy which the same is intended to
fill; and written notice thereof must be by him im-
mediately given to the warden of such prison.
Every appointment or removal made by the inspec-
tors must be by them entered in the regular minutes
of the meeting at which the same is made, and like
notice thereof given to the warden of the prison
affected thereby; and if such appointment or remo-
val relates to a prison other than that at which such
meeting shall be held, a copy of the entry of such
appointment or removal, signed by them or a
majority of them, must be immediately transmitted
to the warden of the prison affected thereby, and
entered by the clerk in the book of record of inspec-
tors' meetings kept at such prison. The warden of
each prison, in every account rendered to the comp-
troller, must note all changes in the officers of such
prison made since rendering his account next pre-
vious thereunto.
Oath of
office.
Laws of 1847, ch. 460, § 37, as amended Laws of
1860, ch. 399, § 3.
S851. Each of the officers mentioned in section
847, before entering upon the duties of his office,
must take and subscribe the oath of office prescribed
by the constitution of this state. Such oath may be
taken and subscribed before any officer authorized
by law to take and administer an oath, and must be
filed in the office of the clerk of the county in which
OF THE STATE OF NEW YORK.
315
the prison for which such officer is appointed is
situated.
See Laws of 1847, ch. 460, § 42.
bond.
S 852. Each of the following officers of the state official
prisons, before entering upon the duties of his office,
must execute a bond to the people of this state, with
sufficient sureties to be approved by the inspector
in charge, in the penal sum mentioned below, for the
faithful performance of his duties according to law:
1. Each warden must execute such a bond in the
penal sum of twenty-five thousand dollars;
2. The store keeper of the Sing Sing prison, and
the kitchen keepers of Auburn and Clinton prisons
must execute such a bond in the penal sum of six
thousand dollars;
3. Each principal keeper must execute such a bond
in the penal sum of five thousand dollars;
4. Each clerk must execute such a bond in the
penal sum of four thousand dollars;
5. The matron of the female department of the Sing
Sing prison, must execute such a bond in the penal
sum of three thousand dollars;
6. The kitchen keeper of the Sing Sing prison,
must execute such a bond in the penal sum of three
thousand dollars.
See Laws of 1847, ch. 460, § 43; Ibid.. § 56;
Ibid., § 66. subd. 3, as amended Laws of 1855,
ch. 522, § 4, subd. 10, and § 5.
S 853. The various bonds required by the last sec-
tion must be filed in the office of the comptroller of
this state.
Bond
where to
be filed.
S854. The annual salaries of the different officers, Salaries.
teachers and guards at the various state prisons, are
as follows:
1. That of each of the wardens, eighteen hundred
dollars;
2. That of each of the principal keepers, twelve
hundred dollars;
316
THE PENAL CODE
3. That of each of the clerks, twelve hundred dol-
lars;
4. That of each of the physicians, twelve hundred
dollars;
5. That of each of the chaplains, one thousand
dollars;
6. That of each of the keepers whose salaries are
not otherwise prescribed by this section, seven hun-
dred and twenty dollars;
7. That of each of the instructors, one hundred
and fifty dollars;
8. That of the guards at each prison, five hundred
and fifty dollars;
9. That of the store keeper at the Sing Sing prison,
one thousand dollars;
10. That of the kitchen keeper at the Sing Sing
prison, one thousand dollars;
11. That of each of the kitchen keepers at the
Auburn and Clinton prisons, one thousand dollars;
12. That of the matron at the female department
of the Sing Sing prison, six hundred and sixty dol-
lars;
13. That of each of the assistant matrons at the
female department of the Sing Sing prison, five hun-
dred and forty dollars;
14. That of the instructress at the female depart-
ment of the Sing Sing prison, one hundred and fifty
dollars.
The commissioners have intended to continue the rates
of compensation prescribed by the existing law, and are
not to be understood as making any recommendation
upon the subject. All questions as to the proper amount
of the various salaries are proper to be left to the con-
sideration of the legislature at the time when the Code
shall come before them for examination. The above
salaries correspond with those prescribed by Laws of
1864, ch. 300. All are, however, reduced to annual
rates; and the phraseology and arrangement of the
statute of 1864, is also modified, to harmonize it more
perfectly with the other parts of the Code.
1
OF THE STATE OF NEW YORK.
317
The previous laws on the subject of salaries of prison
officers, are chiefly Laws of 1847, ch. 460, § 66; Laws of
1849, ch. 141, § 6; and Laws of 1862, ch. 403, § 2.
$855. The salaries of the officers and guards of the How paid.
state prisons are payable monthly at the end of each
month. The warden of each prison must pay the
salaries of the officers and guards at his prison out of
the funds thereof.
See Laws of 1847, ch. 460, §§ 66, 67.
$856. The comptroller is hereby authorized to
audit and allow, from time to time, all necessary
traveling expenses and subsistence of the warden of
each state prison, when necessarily traveling on
official business, or when the attendance of such
warden is required at the seat of government; the
necessity of such travel and attendance to be de-
cided by the comptroller, and the accounts when
audited to be paid by the treasurer on the warrant
of the comptroller.
Laws of 1847, ch. 460, § 68.
Traveling
to be audit-
allowed.
expenses
ed and
support
S 857. The wardens and other officers, and the officers to
guards of the respective prisons must support them- themselves.
selves from their own salaries and resources, and
shall not receive any perquisites or emoluments for
their services other than the compensation provided
in this chapter, except that the wardens, physicians
and chaplains shall keep their offices at the respec-
tive prisons, and that the warden shall reside therein
and they shall all be furnished with the fuel for their
offices, and those who are required to reside in the
prison, for themselves and families, from the stock
provided for the use of the state; and from the same
stock the warden shall furnish fuel for the barracks
of the guards.
Laws of 1847, ch. 460, § 69.
S 858. No warden or other officer of either of the
state prisons of this state shall give any note, draft
officers
cannot give
evidence of
debt.
318
THE PENAL CODE
Official
reports
must be
verified.
Time of
making
reports.
Officers not
to be in-
terested in
contracts.
or other evidence of debt, except a check on the bank
selected as the depository of the prison funds, as pre-
scribed by section 874, and such drafts as are author-
ized by law, in payment for any article purchased for
either of the prisons, and signed by him or them indi-
vidually or in their official capacity; nor shall any
such warden, or other officer, sign 'any paper as
warded for the purpose or with the intent of putting
or having the same put in circulation for any purpose
whatever, nor give any credit to any contractor for
money due to any of the prisons.
Laws of 1854, ch. 240, § 11.
§ 859. Every officer of a prison who is required by
law to make any report or render any statement of
account in writing, for which no particular form of
attestation or verification is prescribed by law, must
verify every such report or account by his affidavit that
the same is just and true.
Suggested as a substitute for Laws of 1855, ch. 552,
§ 8, which is as follows:
"All officers of either of the prisons, who, under any
section of this act, or of any act of which this is amen-
datory, whose duty it is to report annually, quarterly or
monthly to the governor, secretary of state, comptroller,
inspector or inspectors of state prisons, or to the agent
and warden of either of the prisons, will hereafter be
required to attest the same by his or her affidavit that
such report is just and true."
S860. All reports required by law to be made
annually to the inspectors of state prisons, or to the
secretary of state, by any officer of the prisons must
be made up to and including the thirtieth day of
September of each year, and must be delivered on
or before the first day of December in each year.
Laws of 1857, ch. 94, § 3.
$ 861. No inspector or officer employed at either
of the prisons shall be directly or indirectly inter-
ested in any contract, purchase or sale for, by or on
account of such prison, nor shall any inspector,
officer, keeper or guard, or other person employed
1
OF THE STATE OF NEW YORK.
319
at such prison, accept any present from any con-
tractor or contractor's agent, either directly or
indirectly, nor shall any person whatever, convey
into either of the prisons of this state, any article
for the use of the convicts prohibited by the rules
of the inspectors or by the laws of the state.
Laws of 1847, ch. 460, § 83, as amended Laws of 1855,
ch. 552, § 10. The clause "any person violating this
section shall be deemed guilty of a misdemeanor and
punishable as such," found at the end of the original
section, is omitted as unnecessary in view of the pro-
visions of sections 215 and 216 of this Code.
CHAPTER IV.
THE WARDENS.
SECTION 862. Warden must reside at the prison.
863. Must attend to fiscal concerns of prisou.
864. May make contracts.
865. Must superintend manufactures, &c.
866. Must purchase requisite materials.
867. Must take bills and affidavits of all purchases made for the
prison.
868. Must collect debts due the prison.
869. Must take charge of moneys and effects of convicts.
870. Must provide discharged convicts with certain sums of
money.
871. May draw money from the treasury.
872. May draw money from the literature fund.
873. Must furnish bibles and hymn books.
874. Must deposit moneys received, in bank.
875. Must keep regular accounts.
876. Must report estimates in advance of incurring expenses.
877. Must render account to the inspectors.
878. Must make monthly report to the comptroller of receipts
and expenditures.
879. Must file copies of contracts.
880. Must advertise useless property for sale.
881. Must pay sheriff for transporting convicts.
882. Must superintend the prisons.
883. Must keep a time book.
884. Must instruct the keepers.
885. Must daily examine the prison.
886. Must make rules for the subordinate officers.
887. Must keep a daily journal.
888. May suspend subordinate officers.
320
THE PENAL CODE
Warden
must reside
at the
prison.
889. Must receive certain convicts.
890. Must admit the inspectors to visit the prison.
891. Must make a monthly report to the inspectors.
892. Must communicate discovery of insanity of offenders to the
governor.
893. Requisites of the warden's monthly accounts.
894. His accounts must be audited by the comptroller.
895. Penalty for neglect to make statement.
896. Warden liable to punishment for neglect or breach of duty.
897. Farm at Sing Sing.
898. Receipts of warden at Sing Sing.
899. Warden at Clinton may draw arms from state arsenal.
900. May sell ore.
901. May appropriate waters upon the prison lands.
$ 862. The warden of each prison must reside in
the prison to which he is appointed, and attend it
constantly, except when absent while performing
some necessary duties connected with his office.
The sections of this chapter which define the duties
of the warden have been framed so as to present at a
single view the duties now imposed, by several distinct
provisions of statute, upon the agents, or wardens, of
the state prisons; prescribing them, in conformity with
the change of phraseology recommended in earlier sec-
tions (see section 847 and note), as the duties of the
warden. The provisions are chiefly founded on Laws of
1847, ch. 460, § 48; Ibid., § 53; Laws of 1854, ch. 240,
§ 4; Ibid., § 5; Laws of 1860, ch. 399, § 6; Ibid., § 10.
The following provisions of existing laws are omitted,
as superseded by the measure proposed of uniting the
powers and duties of agent and warden, in one officer
to be denominated "warden:"
"Whenever any number of convicts in any state prison
shall be less than three hundred, the warden of the
prison shall have all the powers and perform all the
duties herein imposed upon the agent."
Laws of 1847, ch. 460, § 41.
"The duties of the agent of each of the state prisons
shall be confined exclusively to the financial concerns
thereof. He shall have the exclusive disposal of the
services, and shall designate the employment of all the
convicts, but shall exercise no control over their discipline
or government, nor shall he interfere in the government
of, or exercise any control over the officers of such prison,
other than to require them to keep a correct daily account
of the labor of the convicts under their charge, and to
report the same to him at such periods as he shall re-
quire."
Ibid., § 47.
OF THE STATE OF NEW YORK.
321
"The duties of the wardens of each of the state prisons
shall be exclusively confined to the government, discipline
and police regulation of the same."
Ibid., § 52.
"Whenever there shall exist a vacancy in the office of
agent of either of the prisons, all the powers and duties
of such agent shall devolve upon, and be executed by
the warden of said prison, until such vacancy shall be
filled."
Ibid., § 54.
"The agent of each prison shall possess all the powers,
and discharge all the duties of the warden of the prison,
during a vacancy in the office of warden, or disability in
the warden from any cause to act."
Ibid., § 55.
"The person holding the office of agent and warden
herein before mentioned shall perform all the duties
heretofore by law imposed upon the person holding the
office of agent of either of the state prisons of this state,
and also all the duties heretofore by law imposed upon
the person holding the office of warden of either of the
state prisons; and such agent and warden shall in all
cases be appointed by the inspectors of state prisons, to
hold the office under the same restrictions and qualifica-
tions as are by law imposed in the appointment of an
agent of a state prison."
Laws of 1854, ch. 240, § 15.
S 863. The warden must attend to the fiscal and
business concerns of the prison, and use his best
endeavors to defray all the expenses of the prison
by the labor of the convicts. All the fiscal and
business concerns of each prison shall be conducted
by and in the name of the warden thereof, who has
control over all matters of finance relating to the
prison, subject to the directions and supervision of
the board of inspectors. Each warden has capacity
to sue in any court, and institute and prosecute any
legal proceedings, in all matters concerning his pri-
son, by his name of office, and by that name may
recover all sums of money due from any person to
any former agent or warden, or agent and warden of
the prison, or due to the state on account of such
prison. But it shall not be lawful in any such suit
or action, for any defendant to plead or give in
evidence any offset or matter by way of recoupment
Must attend
concerns
to fiscal
of prison.
41
322
THE PENAL CODE
May make
contracts.
Must super-
intend
manufac-
tures, &c.
Must pur-
chase requi-
site mate-
rials.
Must take
bills and
affidavits
of all pur-
(except for payments made and not credited to such
defendant) or to recover any judgment against such
warden in such suit or action, other than for the costs
and disbursements therein.
See Laws of 1847, ch. 460, § 48; Laws of 1854,
ch. 58, as amended Laws of 1860, ch. 399,
§ 8.
S 864. The warden may make, under the direction
of the inspectors, in the manner hereinafter provided,
contracts for the employment of the convicts, and
for furnishing the necessary supplies for their sup-
port; but no contract can be entered into by the
warden of either of the state prisons, for the hire or
labor of the convicts, or for supplies for their sup-
port, or for any purpose whatever, unless the same
shall have been approved by a majority of the in-
spectors, who must be present in all cases at such
lettings.
Laws of 1847, ch. 460, 48. subd. 3, as amended
Laws of 1854, ch. 240, § 4.
S 865. The warden must superintend all manufac-
turing and mechanical business that may be carried
on in the prison, receive the articles to be manufac-
tured, and sell and dispose of the same for the benefit
of the state.
Laws of 1847, ch. 460, § 48, subd. 4.
S866. The warden must purchase such raw mate-
rials as may be necessary to be manufactured by the
convicts.
Laws of 1847, ch. 460, § 48, subd. 5.
S 867. The warden must take bills and receipts in
duplicate for all supplies and materials for the prison,
purchased by or for him, at the time of such purchase,
the prison and take bills and receipts for all services that shall
chases
made for
be rendered for either of the prisons, at the time of
making payment therefor. The person to whom any
bill shall be paid by any warden must in all cases
make and subscribe an affidavit, to be sworn to before
some person duly authorized by law to take the same,
OF THE STATE OF NEW YORK.
323
stating that such accounts and the articles therein
specified were actually furnished as charged; that
neither the warden, nor any person for him or in his
behalf, had any pecuniary or other interest in the
articles sold, or in the profits thereof; that no com-
missions, presents or profits were paid, or agreed
or promised to be paid in the future to him or to
any person for him; that the receipt signed represents
the correct amount due; that the articles included in
such account were sold at fair cash market prices,
and that the person deposing has actually received
the full amount in cash from the warden. And no
articles purchased for the use of either prison shall
be accepted, or a receipt given therefor, unless accom-
panied by a proper bill of the same, verified as above
stated, and ascertained to be correct. The original
bills must be delivered to the clerk and the dupli-
cate bills for supplies or materials furnished must be
marked "duplicate," and delivered to the store keeper
or kitchen keeper.
See Laws of 1854, ch. 240, § 5, as amended Laws
of 1860, ch. 399, § 10; also Laws of 1855,
ch. 552, § 4.
§ 868. The warden must enforce the payment of
all debts due to the prison as soon and with as little
delay as possible. But with the approbation of the
inspector having at the time charge of the prison, he
may accept any security from any debtor, on grant-
ing him time, that he deems conducive to the interest
of the state.
See Laws of 1847, ch. 460, § 48, subd. 7. Subdivision 8
of this section was repealed by Laws of 1854, ch. 240,
§ 12.
$ 869. The warden must take charge of all moneys
and other articles which may be brought to the prison
by convicts, and cause the same immediately on the
receipt thereof, to be entered by the clerk among
the receipts of the prison. Such moneys and other
articles, whenever the convict from whom the same
Must collect
the prison.
debts due
Must take
moreys and
convicts.
charge of
effects of
324
THE PENAL CODE
Must pro-
vide dis-
charged
convicts
with cer-
tain sums
of money.
May draw
money from
were received is discharged from prison, or the same
are otherwise legally demanded, must be returned
by the warden to such convict or other person legally
entitled to the same, and proper vouchers taken there-
for. And for such money as any convict or any
other person for him may have so deposited, he shall
be entitled to receive interest at the rate of six per
cent from the time of such deposit until payment.
See Laws of 1847, ch. 460, § 48, subd. 9, as
amended Laws of 1860, ch. 399, § 6.
$870. The warden must furnish to each convict
who shall be discharged from prison by pardon or
otherwise, necessary clothing, not exceeding ten dol-
lars in value, and such surn of money, not exceeding
upon an average three dollars to each convict, as he
deems proper and necessary, and the sum of three
cents for each mile for which it may be necessary for
such convict to travel to reach the place of his resi-
dence, and if he has no residence within the state, to
the place of his conviction; and also any sum which
shall stand to the credit of the convict for any extra
work which he may bave performed; of which an
account shall be kept, under such regulations as the
inspectors shall prescribe. But the allowance of any
such additional sum may be made dependent on the
good behavior of the convict.
See Laws of 1847, ch. 460, § 48, subd. 10; also
Laws of 1862, ch. 417, § 5, as amended Laws
of 1863, ch. 415.
S871. The warden may draw from the treasurer
the treasury of the state, by a warrant of the comptroller upon
the treasurer, in favor of the warden, all moneys
appropriated to the use of the prison under his
charge. But he shall not draw at any one time, or
have in his hands unaccounted for at any one time,
of moneys so appropriated, a greater sum than five
thousand dollars.
May draw
money from
the litera-
ture fund.
Laws of 1847, ch. 48, § 48, subd. 11.
$ 872. The warden may draw, each and every year,
from the income of the literature fund, the sum of one
1
OF THE STATE OF NEW YORK.
325
hundred dollars, to be expended in the purchase of
books, maps and stationery, for the use of the con-
victs. And he must append to his annual report a
catalogue of such prison library.
Laws of 1847, ch. 460, § 48, subd. 12.
$ 873. The warden must furnish, at the expense of Must fur
the state, a bible and hymn book to each convict.
See Laws of 1847, ch. 460, § 60, subd. 3.
S874. The warden must deposit all moneys re-
ceived by him as such warden, once in each week, to
the credit of the treasurer of the state, in a bank
located in the city or village most adjacent to the
prison; and he must send to the comptroller, weekly,
a statement showing the amount so received, and
from whom and when and for what received, and the
days on which the deposits were made. This state-
ment of deposits must be certified to by the proper
officer of the bank receiving such deposit. The war-
den must also verify by his affidavit that the sum so
deposited is all the money received by him, from
whatever source of prison income, during the week,
and up to the time of deposit. All moneys so depo-
sited by the warden of any prison shall be subject to
the quarterly drafts of the treasurer of the state.
Any bank in which deposits are made under the pro-
visions of this act must, before receiving any such
deposits, file a bond with the comptroller of the
state, subject to his approval, for such sum as he
shall deem necessary.
"
See Laws of 1854, ch. 58, as amended Laws of 1860,
ch. 399, § 8. This provision is regarded as superseding
Laws of 1854, ch. 240, § 6, subd. 2, as amended Laws of
1855, ch. 552, § 11; which declares it the duty of the
warden to deposit, at least once in a week, to the credit
of the treasurer of the state, in such bank or banks as
may be designated by the comptroller, all the moneys
received by him as such warden, and send to the comp-
troller weekly a statement showing the amount so re-
ceived, and from whom and when and for what received
and deposited, and the days on which such deposits were
nish bibles
and hymn
books.
Must depo-
bank.
sit moneys
received, in
326
THE PENAL CODE
Must keep
regular
accounts.
•
Must report
estimates
of incurring
expenses.
•
made;
the statements of deposits to be certified to by
the proper officers of the bank receiving such deposit or
deposits; the agent and warden must also verify by his
affidavit that the sum so deposited is all the money
received by him, from whatever source of prison income,
during the week, and up to the time of deposit
S 875. The warden must keep a regular and cor-
rect account of all moneys received by him from any
source whatever, by virtue of his office, including all
moneys taken from convicts or received as the pro-
ceeds of property taken from them, and all sums
paid by him, and the persons to whom and purposes
for which the same were paid. He must keep in
his office regular books of entries, in which all his
accounts and transactions must be entered. Such
books and the accounts entered therein must be
open for the examination of the inspector or inspec-
tors, the comptroller, or any person authorized by
him for that purpose, during office hours.
See Laws of 1847, ch. 460, § 48, subd. 14; Laws
of 1854, ch. 240, § 6, subd. 1.
$ 876. The warden must, monthly, and before any
in advance expenses are incurred by him, make an estimate, in
minute detail, of the necessary expenses for the sup-
port and maintenance of the prison under his charge,
including the number of rations or kind of property
to be delivered during the coming month, upon any
contract made under section 864, and present the
same to the comptroller; who, if satisfied that the
expenditures are necessary and proper, shall there-
upon authorize the warden to make his draft on the
treasury for the sum thus estimated, or any part
thereof; which amount shall be paid, on the warrant
of the comptroller. It is not lawful for such warden
to make purchases on behalf of the state, unless such
purchases have been included in the estimate pre-
sented to and approved by the comptroller. The
estimate required from the warden by this section
must first be submitted to the inspector in charge of
the prison, and his approval written thereon, certify-
1
OF THE STATE OF NEW YORK.
327
ing that he has carefully examined the same, and
that the articles contained in such estimate are ac-
tually required for the use of the prison. Such
estimate must be accompanied by the report of the
store keeper, or of the kitchen keeper when the duties
of store keeper are performed by the kitchen keeper,
under oath, giving the amount of each article con-
sumed for the last month, and the amount of each
article then on hand.
Laws of 1854, ch. 240, § 6, subd. 3, as amended
Laws of 1855, ch. 552, § 12.
S 877. The warden must close his account, annu-
ally, on the last day of September of each year; and,
on or before the first day of December thereafter,
must render to the inspectors a full and true account,
accompanied by copies of the necessary vouchers,
of all moneys received by him on account of the
prison under his charge, and all the moneys expen-
ded by him for the use thereof, and also an inventory
of the goods, raw materials and other property of
the state then on hand, exhibiting, in detail, all the
transactions of the prison for the year.
See Laws of 1847, ch. 460, § 48, subd. 15.
Must render
the inspec-
account to
tors.
Must make
report to
monthly
the comp-
troller of
receipts and
expendi-
S 878. The warden must, on the first day of every
month, make to the comptroller a full and perfect
statement of the receipts and expenditures, specify-
ing the items thereof for the prison under his charge tures.
for the past month, which must be accompanied by
the necessary vouchers, regularly rendered according
to their respective dates, with some short designation
thereon of the consideration of the payment evi-
denced by the vouchers, and the amount of the
vouchers carried out in figures; if the vouchers are
objectionable, the comptroller must enter his dissent
on the particular voucher, and return it to the war-
den reporting the same, who must cause it to be
immediately corrected and returned. Every such
statement must be verified by an affidavit of the
warden thereunto annexed, as follows: I,
328
THE PENAL CODE
warden of the
Must file
copies of
contracts.
prison, do solemnly swear
bank, being the
that I have deposited in the
bank designated by law for such purpose, all the
moneys received by me, belonging to the state,
during the last month; and I do further swear that
the foregoing is a true abstract of all the moneys
received and expenditures made by me as such war-
den, during the month ending on the
day of
18 and that the goods and other articles
therein specified, were purchased and received by me
at the prison of which I am in charge, and that the
goods were purchased at fair cash market prices, and
that the same were paid for in cash; that I had no
pecuniary or other interest in the articles purchased,
or any person in my behalf; that I receive no pecu-
niary or other benefit therefrom in the way of com-
missions, per centage, deductions or presents, or in
any other manner whatever, either directly or indi-
rectly, nor any promise of future payments, presents
or benefits or to any other person for me, either
directly or indirectly; and further, that all the re-
ceipts were filled up as they now appear, and were
read or the amount distinctly stated to the signer of
each before they were signed. The affidavit of the
clerk must likewise be appended thereto, certifying
that the articles contained in such bill were received
at the prison, and that they conformed in all respects
to the invoice of the goods received and entered by
him, both in quantity and quality.
Laws of 1854, ch. 240, § 6, subd. 4, as amended Laws
of 1860, ch. 399, § 11. These acts are regarded as
superseding subdivision 13 of Laws of 1847, ch. 460, §
48, which is therefore omitted. It requires the "agent
to account monthly with the comptroller for all moneys
so drawn by him from the treasurer of the state, and for
all other moneys received by him as such agent, from
whatever source the same may be derived.
S 879. The warden must file or cause to be filed, in
the office of the comptroller, a copy of each and every
contract made and executed by him, as such warden,
OF THE STATE OF NEW YORK.
329
within thirty days after the execution thereof. He
must also, monthly, report to the comptroller a de-
tailed account of the number of days' labor performed
on such contracts, which account must be verified by
the affidavit of such warden and the clerk of the
prison where such labor was performed, to the effect
that such account correctly states the whole number
of days' labor performed on such contracts.
Laws of 1854, ch. 240, § 6.
tise useless
sale.
S 880. The warden must, as often as the inspectors Must adver.
deem necessary, advertise, in one or more news- property for
papers in the county where the prison is situated,
all personal property of the prison then on hand,
which may have become useless, or which is no
longer required for prison purposes, and sell the
same at a public sale to the highest bidder, and
deposit the amount received from such sale to the
credit of the treasurer, as now required by law.
Laws of 1855, ch. 552, § 6.
S 881. The warden must pay to the sheriffs or their
deputies for transporting convicts to the prison the
fees to which such sheriffs or their deputies are by
law entitled, provided there are funds belonging to
such prison sufficient to warrant such expenditure
and meet the current demands for its support; if
not, the warden shall so certify, and in that case
such fees shall be paid from the treasury, upon the
warrant of the comptroller.
Laws of 1847, ch. 460, § 87.
Must pay
transport-
sheriffs for
ing con-
victs.
intend the
$ 882. The warden must exercise a general super- Must super-
vision over the government, discipline and police prisons.
regulation of the prison.
See Laws of 1847, ch. 460, § 53, subd. 1.
a time-book.
S 883. The warden must keep a time-book, in Must keep
which must be inserted the names of all the officers,
keepers or guards belonging to the prison, and
opposite to each name he must daily mark whether
330
THE PENAL CODE
Must in-
struct the
keepers.
Must daily
examine
such officer, keeper or guard was "absent or pre-
sent;" and if absent, he must give the alleged reasons
for such absence; and at the end of each month he
must add up the absences appearing in the time
book, and forward a full statement thereof to the
comptroller with such warden's monthly report.
See Laws of 1855, ch. 552, § 7.
$ 884. The warden must give the necessary in-
structions to the keepers, and examine whether they
have been careful and diligent in the discharge of
their several duties.
See Laws of 1847, ch. 460, § 53, subd. 2.
S 885. The warden must examine daily into the
the prison. state of the prison, and into the health, condition
and safe keeping of the convicts, and inquire into
the justice of any complaints made by the convicts
relative to their provisions, clothing and treatment
by the keepers.
Must make
rules for
nate offi-
cers.
Laws of 1847, ch. 460, § 53, subd. 3.
S 886. The warden may make such general orders
the subordi- or rules for the government of the subordinate offi-
cers of the prison as he deems proper, and are
approved by the board of inspectors. Such rules
and orders must be entered in writing, in a book to
be kept by the warden for that purpose, and are
subject to any alteration or amendment by the in-
spectors.
Must keep a
daily jour-
nal.
Laws of 1847, ch. 460, § 53, subd. 4.
S887. The warden must keep a daily journal of
the proceedings of the prison, in which must be
entered a note of every infraction of the rules and
regulations of the prisons by any officer thereof,
which comes to his knowledge; and of every pun-
ishment inflicted on a convict, the nature and
amount thereof, and by whom it was inflicted;
and, also, a memorandum of every well founded
complaint, made by any convict, of bad or insuffi-
cient food, want of clothing, or cruel and unjust
OF THE STATE OF NEW YORK.
331
treatment by a keeper. This journal must be kept
open at all times to the examination of the inspector
in charge of the prison, and of the board of inspec-
tors.
Laws of 1847, ch. 460, § 53, subd. 5.
$ 888. The warden may suspend, for cause, any
officer, keeper or guard in said prison, and employ
another in his stead, until the pleasure of the inspec-
tor in charge shall be known; whom he must imme-
diately notify of such suspension and the reasons
thereof.
Taken from Laws of 1847, ch. 460, § 65, as amend-
ed Laws of 1857, ch. 94, § 1.
S 889. The warden must receive into the prison
under his charge, on the order of the governor, any
person convicted of any crime punishable with death,
or who shall be pardoned on condition of being con-
fined either for life or a term of years in the state
prison, and confine such prisoner according to the
terms of such condition.
Laws of 1847, ch. 460, § 53, subd. 6.
$890. The warden must admit the inspectors, or any
one of them, or any agent or committee of the Prison
Association of New York, into every part of the prison,
and exhibit to them, on demand, all the books, papers,
warrants and writings, pertaining to the prison or to
the business, management, discipline or government
thereof, and render to them every other facility in
his power to enable them to discharge their duties.
Laws of 1847, ch. 460, § 53, subd. 7.
$ 891. The warden must make a monthly report,
through the inspector having charge of the prison,
to the inspectors, stating the names of all convicts
received into the prison during the preceding month,
the counties in which they were tried, the crimes of
which they were convicted, the nature and duration
of their sentences, their former trade, employment or
occupation, the nature of their employment in prison,
their habits, color, age, place of nativity, degree of
instruction, and a description of their persons, and
May sus-
or
pend sub-
ordinate
Must re-
ceive cer-
tain con-
victs.
Must admit
tors to visit
the inspec-
the prison.
Must make
report to
a monthly
the inspoc-
tors
332
THE PENAL CODE
Must com-
municate
discovery
of offenders
to the
governor.
also stating whether such convicts have ever before
been confined in any state prison or county jail, and
if so, stating the offense for which they were confined,
and the duration of their punishment, and also stat-
ing in such report the names of all the convicts par-
doned or discharged during the past month, and all
other particulars in relation to the parties so par-
doned or discharged, that are required to be stated
in relation to the convicts received in the prison.
Laws of 1847, ch. 460, § 53, subd. 8.
$ 892. Whenever the warden of a prison has rea-
of insanity son to believe that any convict in the prison was
insane at the time he committed the offense for
which he was sentenced, such warden must com-
municate, in writing, to the governor, his reason for
such opinion, and must refer the governor to all the
sources of information with which he may be ac-
quainted, in relation to the insanity of such con-
vict.
Requisites
of the
warden's
monthly
accounts.
His 2c-
counts must
be audited
by the
comptrol-
ler.
Laws of 1847, ch. 460, § 98.
$ 893. The monthly accounts to be rendered by
the warden of each prison to the comptroller, must
embrace a general current account of the receipts
and expenditures at his prison for the month, and an
abstract of the expenditures in detail, which must
be accompanied by the necessary vouchers regularly
numbered, according to their respective dates, with
some short designation thereon of the consideration
of the payment, evidenced by the vouchers, and the
amount of the voucher carried out in figures; such
account must be attested by the affidavit of the war-
den and clerk thereto annexed.
Laws of 1847, ch. 460, § 49.
S 894. It is the duty of the comptroller of the state
to examine and audit the accounts of the respective
wardens, and annually to lay a statement thereof
before the legislature.
Laws of 1847, ch. 460, § 51.
OF THE STATE OF NEW YORK.
333
neglect to
ment.
$895. If the warden of a state prison willfully Penalty for
neglects or refuses to make any weekly or monthly make state-
return, estimate or statement, or to transmit any
statement and certificate of deposits, to the comp-
troller, directed by any provision of this title, it shall
be the duty of the comptroller to notify the inspec-
tors of such omission, and to order the bond of the
warden to be put in suit, for the recovery of any
moneys which may be in his hands belonging to
the state.
Laws of 1854, ch. 240, § 13.
liable to
for neglect
$ 896 Each warden of a state prison is liable to Warden
indictment and punishment, as for a misdemeanor, punishment
for any willful neglect of duty, or for any malpractice or breach
in the discharge of the duties of his office.
Laws of 1854, ch. 240, § 14.
of duty.
Sing Sing
S 897. The warden of the Sing Sing prison shall Farm at
continue to have charge of the farm and premises on
which the same is situated, and it is his duty to rent
or otherwise use or improve the same to the best
advantage for the benefit of the state; but no lease
shall be made by him for a longer term than three
years.
Laws of 1847, ch. 460, § 143.
S 898. The moneys which may, from time to time,
be in the hands of the warden of the Sing Sing
prison, and which are not required for the current
expenses of the prison, must be paid into the trea-
sury of this state, and the comptroller must keep an
account with the prison, in which the sums so paid.
into the treasury, with the annual interest thereon,
must be credited to the prison; the sums thus credi-
ted must be set apart for the use of the prison, and
whenever the same may be required for the ordinary
expenses of the prison, or for any expenses author-
ized by law, connected with the prison, they may be
drawn from the treasury by the warden of the prison
on the written direction of the inspectors. All sums
Receipts of
at Sing
of warden
Sing.
334
THE PENAL CODE
Warden at
Clinton
may draw
arms from
state arsc-
nal.
May sell
ore.
May appro-
priate
waters
upon the
prison
lands.
thus drawn from the treasury must be charged to the
prison, in the account kept by the comptroller.
Laws of 1847, ch. 460, § 111.
$899. The warden of the Clinton prison may draw,
from time to time, from the state arsenal, in the city
of Albany, such arms and ammunitions as he deems
necessary for the use of the keepers and guards of
the prison.
Laws of 1847, ch. 460, § 135.
$ 900. The warden of the Clinton prison may sell
the ores raised at that prison, at the common market
price, on time, not exceeding six months, receiving
therefor such indorsed paper as shall be approved by
the warden and clerk of the prison. The proceeds
of such sales must be applied to the support of the
prison.
Laws of 1847, ch. 460, § 136; Laws of 1850, ch.
306, § 3.
S 901. The warden of the Clinton prison may ap-
propriate to the use thereof, all waters upon the
tract purchased for the establishment of said prison;
and any person claiming damages in consequence of
such appropriation of water. shall, within six months
thereafter, make application to the county judge of
the county of Clinton, who shall appoint three com-
missioners, not interested in lands through which
the stream or streams of water so appropriated may
have previously run. Such commissioners must per-
sonally examine the lands of the applicant, and make
an estimate of the damages he has sustained by rea-
son of such appropriation of water, which estimate
must be reduced to writing, subscribed and sworn to
by such commissioners, and then transmitted to the
comptroller. The comptroller must thereupon pay
the estimated damages of the applicant out of the
funds appropriated for the prison.
Laws of 1847, ch. 460, § 137.
1
OF THE STATE OF NEW YORK.
335
CHAPTER V.
THE MATRON OF THE FEMALE DEPARTMENT OF THE
SING SING PRISON, AND ASSISTANT MATRONS.
SECTION 902. Matron of the female department at Sing Sing must super-
intend the department.
903. Must instruct the assistant matrons.
904. Must examine, daily, the state of the department.
905. Must make rules for the assistant matrons.
906. Must keep a daily journal of the department.
907. Must furnish a monthly account to the inspector in charge.
S 902. The matron of the female department of
the Sing Sing prison must exercise a general super-
vision over the government, discipline and police
regulation of the department.
The existing provision relative to the duties of the
matron is as follows: "The matron of the female cou-
vict prison at Sing Sing shall have the same powers, and
perform the same duties, in relation to that prison, as
are herein given and imposed upon the wardens of
prisons, and the powers and duties of assistant matron
shall be the same as those of the keepers of the prison;
but such matron and assistant matron shall, in all cases,
be bound to obey such regulations and instructions as
the inspectors shall, from time to time, prescribe." Laws
of 1847, ch. 460, § 59.
This method of defining her powers and duties be-
comes inappropriate if the office of warden is extended
to embrace that of agent. The provisions in the text
are therefore recommended instead.
Matron of
department
Sing must
the female
at Sing
superin-
tend the de-
partment.
struct the
matrons.
S903. The matron must give the necessary in- Must in-
structions to the assistant matrons, and examine assistant
whether they have been careful and diligent in the
discharge of their several duties.
S904. The matron must examine, daily, into the
state of the female department of the prison, and
into the health, condition and safe keeping of the
female convicts, and inquire into the justice of any
complaints made by such convicts relative to their
Must exam-
the state of
ine, daily,
the depart-
ment.
336
THE PENAL CODE
Must make
rules for
the assist
ant mat-
rons.
Must keep
a daily jour-
nal of the
depart-
ment.
Must fur-
nish a
monthly
account to
tor in
provisions, clothing and treatment by the assistant
matrons.
$905. The matron may make such general orders
or rules, for the government of the assistant matrons,
as she deems proper, and are not inconsistent with
those prescribed for the general government of the
prison by the inspectors or warden. Such orders and
rules must be reduced to writing and furnished to
the warden to be entered by him in the book re-
quired to be kept by section 886, and are subject to
any alteration or amendment by the inspectors.
$906. The matron must keep a daily journal of
the proceedings of the female department of the
prison, in which must be entered a note of every
infraction of the rules and regulations of the prison
or of the female department, by any officer thereof,
and occurring within or affecting the female depart-
ment, which comes to her knowledge; and of every
punishment inflicted on a female convict, the nature
and amount thereof, and by whom it was inflicted;
and also a memorandum of every well founded com-
plaint made by any female convict, of bad or insuf-
ficient food, want of clothing, or cruel or unjust treat-
ment. This journal must be kept open at all times
to the examination of the warden and of the inspec-
tor in charge of the prison, and of the board of
inspectors; and shall be deemed a part of the record
required to be kept by the warden, by section 887.
S 907. The matron must furnish, at the end of each
month, to the inspector in charge, an account con-
the inspec- taining a true statement of all the articles drawn on
her requisition or received during the month then
ended, with the amount of each article remaining on
hand.
charge.
See Laws of 1847, ch. 460, § 66, as amended Laws of
1855, ch. 522, § 5. The verification of the account is
sufficiently provided for by section 859.
1
OF THE STATE OF NEW YORK.
337
1
CHAPTER VI.
THE CLERKS.
SECTION 908. Clerk must attend daily at prison.
909. Must act as clerk of the inspectors.
910. Must keep a register of convicts.
911. Must keep all the books and accounts.
912. Must keep a separate account of articles received from
convicts.
913. Must enter bills received by warden.
914. Must examine articles purchased by the warden and com-
pare them with the bill.
915. Must write for the warden and inspectors.
916. Must have the custody of books and papers.
917. Must preserve a set of all official reports.
918. Must make an annual report to secretary of state.
919. Must make an annual report to inspectors.
920. May take affidavits.
$908. The clerk of each prison must attend daily
at the prison during the proper business hours;
unless by the direction of an inspector, or of the
warden, he is otherwise engaged in transacting busi-
ness on account of the prison.
Laws of 1847, ch. 460, § 57, subd. 1.
Clerk must
at prison.
attend daily
$ 909. The clerk must act as clerk of the inspec- Must act as
tors at their meetings held at the prison.
Laws of 1847, ch. 460, § 56.
$910. The clerk must keep a register of convicts,
in which the names of the convicts shall be alpha-
betically arranged, and in which shall be entered,
under appropriate columns, the date of conviction,
where born, age, occupation, complexion, stature,
crime, court and county where convicted, term of sen-
tence, number of previous convictions, to what
prison or prisons previously sent, when discharged,
and how discharged. The inspectors may require
such additional facts to be stated on the register as
they may deem proper.
Laws of 1847, ch. 460, § 57, subd. 2.
clerk of the
inspectors.
Must keep
of convicts.
a register
43
338
THE PENAL CODE
Must keep
all the
books and
accounts.
Must keep
a separate
account of
articles re-
convicts.
S 911. The clerk must keep all the books and
accounts of the financial transactions of the prison,
and annually report to the inspectors, on the thirty-
first day of December, the number of convicts
remaining in prison at the commencement of the
year, the number received during the year, the num-
ber discharged and how, the number of deaths and
escapes, and the number removed to the house of
refuge and lunatic asylum, and the number then
remaining in prison.
Ibid., subd. 3.
$912. The clerk must keep a separate account in
a book, provided for that purpose, of all money and
ceived from other articles received by the warden from the con-
victs, in which account each convict must be credited
with the money and other articles so received from
him.
Must enter
bills re-
ceived by
warden.
Must exam-
ine articles
by the
warden
and com-
pare them
with the
bill.
See Laws of 1847, ch. 460, § 48, subd. 9, as
amended Laws of 1860, ch. 399, § 6.
$ 913. The clerk must enter each bill taken by the
warden of the prison, for any supplies or materials
purchased for, or services rendered to the prison, in
the books of the prison, immediately upon the re-
ceiving such bill.
Taken from Laws of 1847, ch. 460, § 57, subd. 5,
as amended Laws of 1854, ch. 240, § 7.
S914. The clerk must examine, at the time of their
purchased delivery, all articles purchased by the warden for the
use of the prison, and compare them with the bills
rendered thereof, and examine all materials or sup-
plies furnished to the prison under contract, so as to
ascertain whether such articles, materials or supplies
correspond in weight, quantity or quality, with the
description given in the bill, or called for by the con-
tract; and in case they do not, he must immediately
note the discrepancy in the books of the prison, and
also notify the warden thereof.
Sce Laws of 1847, ch. 460, § 57, subd. 4; Ibid.,
subd. 5, as amended Laws of 1854, ch. 240,
§ 7.
OF THE STATE OF NEW YORK.
339
S 915. The clerk must do such writing as may be
required of him by the inspectors, or inspector having
charge of the prison, or warden, relating to the affairs
of the prison.
Laws of 1847, ch. 400, § 57, subd. 5.
S 916. The clerk must take the charge and cus-
tody, under the direction of the inspectors, of all the
books of account, registers, returns, and other docu-
ments and papers relating to the affairs of the prison;
all of which must be preserved aud remain in the
prison as public property, and be open at all times
to the examination of each inspector and of every
other person authorized by law to examine the same.
Ibid, subd. 6.
$ 917. The clerk must preserve, in the prison, a set
of all official reports made to the legislature, respect-
ing the same, and a set of similar reports in relation
to each of the other state prisons, and of prisons in
other states as far as practicable; for which purpose
a suitable number of such reports, when printed, shall
be supplied to him by the secretary of state.
See Ibid, subd. 7.
S918. The clerk must make an annual report to
the secretary of state, on or before the first Tuesday
of February in each year, stating the names of con-
victs discharged or pardoned, during the preceding
year, from the prison, and all the particulars in
relation to such convicts required to be stated in
the warden's monthly report to the inspectors, and
stating also, in cases of pardon, how much of the
term of sentence was unexpired when the pardon
was granted, the conditious, if any, on which it was
granted, and the state of health of each convict so
pardoned, at the time of his discharge.
Sce Ibid, subd. 8.
$ 919. The clerk must make an annual report to
the inspectors, on or before the first day of December
Must write
for the
warden and
inspectors.
Must have
of books
the custody
and papers.
Must pre-
of all official
serve a set
reports.
Must make
report to
an annual
secretary of
state.
Must make
report to
an annual
inspectors.
340
THE PENAL CODE
May take
affidavits.
in each year, exhibiting the number of convicts then
confined therein, the various branches of business in
which they are employed, and the number employed
in each branch.
Ibid., subd. 9.
$ 920. The clerks of the several prisons in this
state, or in their absence, the wardens are hereby
authorized and required to take affidavits, in all
matters of accounts against their respective prisons,
and also in relation to fees of sheriffs in bringing
convicts to either of the prisons.
See Laws of 1854, ch. 240, § 8, as amended Laws
of 1855, ch. 552, § 13.
Keepers
must obey
directions
of warden
CHAPTER VII.
THE KEEPERS.
SECTION 921. Keepers must obey directions of warden.
922. Must preserve proper discipline.
923. Store keeper at Sing Sing must take charge of goods pur-
chased.
924. Must make out monthly statement for inspector in charge.
925. Must compare bills taken for goods purchased.
926. Must keep account of goods sold by the warden, &c.
927. General duties of kitchen keeper.
928. Kitchen keepers at Auburn and Clinton must act as store
keepers.
929. Duties of hospital and hall keepers.
S 921. The principal keeper and assistant keepers
of each prison must obey and carry into effect all
such orders and directions as they may receive from
the warden, as to the management and discipline
of the prison, not inconsistent with the laws of this
state, and the general regulations prescribed by the
inspectors.
See Laws of 1854, ch. 240, § 3; Laws of 1855, ch. 552,
§ 9. The substance of the former of these statutes is
stated in the note to section 847. The latter statute is
as follows:
"Whenever the number of convicts in the Clinton
prison shall exceed three hundred, a principal keeper
shall be appointed for such prison, and from the time
OF THE STATE OF NEW YORK.
341
such appointment is made, the salary of the agent and
warden and of such principal keeper shall be the same
as now allowed by law to the agents and wardens and
principal keepers of the Sing Sing and Auburn prisons,
and the duties of the said agent and warden and of such
principal keeper, the same as required by chapter two
hundred and forty of the Laws of eighteen hundred and
fifty-four, or of the acts of which that was amendatory."
Laws of 1855, ch. 552, § 9.
S 922. The principal keeper and assistant keepers,
in each prison, must preserve proper order and dis-
cipline among the convicts under their respective
charge; and take care that they are diligently em-
ployed in the labor or business assigned them. They
must also, when having the charge of convicts em-
ployed upon contracts or otherwise, keep a correct,
daily, account of the labor of each convict so em-
ployed, in the manner that shall be prescribed by
the warden, and make reports to him of the same,
at such periods as he shall require; which reports
must, in all cases, be attested by the affidavit of the
keeper, that the account fairly and justly sets forth
the labor performed on such contract or otherwise,
during the period charged in such account.
Laws of 1847, ch. 460, § 58, as amended Laws of
1855, ch. 552, § 2.
S923. The store keeper at Sing Sing must take
charge of all goods, provisions, and other articles,
purchased or designed for the use of the prison, and
enter the same in books to be kept by him for that
purpose, and note all discrepancies, if any, which
arise between the goods received and the bill accom-
panying such articles. Such goods, when received,
must be kept in some safe place under his charge, and
no goods shall be delivered by him, except on a requi-
sition from the kitchen keeper, or warden, or principal
keeper, or, at the Sing Sing prison, from the matron
of the female department, or in his, her, or their
absence, the person acting as such. Such requisition
must, in all cases, be in writing, and by him placed
on file, and in addition thereto, the articles named in
Must pre-
per dis-
serve pro-
cipline.
Store
keeper
at Sing
take charge
purchased.
Sing must
of goods
342
THE PENAL CODE
Must make
out monthly
statement
for inspec-
tor in
charge.
Must com-
pare bills
Laken for
goods pur.
chased.
Must keep
account of
goods sold
by the war-
den, &c.
General
duties of
kitchen
keeper.
such requisition must be entered in his books, which
books must state what the articles were, the quantity
delivered, and on whose order they were delivered,
and to what shop or place sent.
This and the next three sections are taken from Laws
of 1855, ch. 552, § 4.
$924. The store keeper must, at the end of
each month, make out a correct statement, giving
the amount and kind of each article received, the
amounts and kinds of goods delivered on requisi-
tions, and to whom delivered, and the quantity of
each kind of property then on hand, with the value
thereof at that time; which statement, when made
up, must be delivered to the inspector in charge, and
by him examined; and if found correct, he shall so
certify thereon. Such statement and certificate must
then be delivered to the warden, and by him for-
warded to the comptroller, with his monthly estimate
and shall form a part thereof.
S925. The store keeper must take the duplicate
bills for all goods and other articles purchased by
the warden for the use of the prison, and compare
them carefully with the originals. If he finds that
they agree and that the goods delivered to him also
agree with the bills, he must enter them in a book to
be furnished by the warden for that purpose.
S 926. The store keeper must keep a perfect, just
and true account of all goods sold by the warden or
other officers of the prison, belonging to the prison.
S927. The kitchen keeper, at each prison, must
take the charge and care of the kitchen of the prison,
and of the preparation of food for the convicts. He
must enter in a book to be kept for the purpose, all
articles received to be cooked, and must, at the end of
each month, state, in a report which he must submit to
the inspectors, what amount has been received, what
OF THE STATE OF NEW YORK.
343
amount has been consumed, whether any of such
articles remain on hand, and what they are.
See Laws of 1855, ch. 552, § 4.
S 928. The kitchen keepers at the Auburn and
Clinton prisons must also perform, at their respec-
tive prisons, the duties imposed upon the store
keeper of the Sing Sing prison. All provisions of
law which treat of the duties of store keeper at Sing
Sing, apply in the same manner to the kitchen keep-
ers of Auburn and Clinton prisons, in all respects.
S929. Such of the keepers as may be designated
by the warden, to act as hospital and hall keepers,
must examine and enter all goods coming into the
hospital, and to the halls or galleries; make requisi-
tions for all goods required by them, through the
warden or principal keeper; and enter in books, to
be kept for that purpose, all articles so received or
sent away from their respective departments.
Laws of 1847, ch. 460, § 66, subd. 3, as amended
Laws of 1855, ch. 522, § 4.
Kitchen
Clinton
Auburn and
store keep-
keepers at
must act as
ers.
Duties of
and hall
hospital
keepers.
CHAPTER VIII.
THE PHYSICIANS.
SECTION 930. Physician must attend constantly at the prison.
931. Must take charge of hospital.
932. Must attend the sick.
933. Must examine the cells of convicts weekly.
934. Must make a monthly report to the inspectors, of patients
in hospital.
935. And of sick convicts not received into the hospital.
936. Must examine the provisions furnished.
937. Must keep a daily record of admissions to the hospital.
938. Must make a yearly report to the inspectors.
939. Inspectors may require physicians at Sing Sing and Clinton
to reside in the prison.
$930. The physician must attend daily, during
the proper business hours, at the prison, and hold
himself, at all times, in readiness to discharge his
duties as such physician, unless, by the direction of
Physician
constantly
son.
must attend
at the pri-
344
THE PENAL CODE
Must take
charge of
hospital.
Must attend
the sick.
Must exam-
ine the cells
weekly.
an inspector, or of the warden of the prison, he is
otherwise engaged in transacting business on ac-
count of the prison.
See Laws of 1862, ch. 403, § 1.
S 931. The physician of each prison must take
charge of the hospital of the prison.
This section and the seven which follow are taken
from Laws of 1847, ch. 460, § 63.
$ 932. The physician must attend, at all times, to
the wants of the sick convicts, whether in the hospi-
tal or in their cells.
§ 933. The physician must examine, weekly, the
of convicts cells of the convicts for the purpose of ascertaining
whether they are kept in a proper state of cleanliness
and ventilation, and report the same, weekly, to the
warden.
Must make
a monthly
report to
the inspec-
tors of
patients
S 934. The physician must report, monthly, to
the inspectors the number of patients received
into the hospital during the month, stating their
in hospital. respective ages, color, disease, and occupations in
And of sick
convicts
not re-
ceived into
hospital.
Must exam-
ine the
provisions
furnished.
•
prison, the quality and kind of medicines adminis-
tered during the month, the number of those dis-
charged, their condition when discharged, the time
they shall have remained in the hospital, and the
number of deaths, stating the cause of such deaths.
$935. The physician must report, in like manner,
the number of sick convicts not received into the
hospital, for whom he shall have prescribed during
the last month, and the quantity and kind of the
medicines so prescribed, and the number of days
during which such convicts, in consequence of sick-
ness, shall have been relieved from labor.
S 936. The physician must examine, daily, into
the quality and state of the provisions delivered to
the prisoners. And whenever he has reason to be-
1
OF THE STATE OF NEW YORK.
345
lieve that any of such provisions are prejudicial to
the health of the prisoners, he must immediately
make a report thereof to the warden of the prison.
He must also prescribe the diet of sick convicts,
whether in the hospital or in their cells or elsewhere,
and his directions in relation thereto must be fol-
lowed by the warden.
S 937. The physician must keep a daily record of
all admissions to the hospital, indicating the sex,
color, nativity, age, occupations, habits of life, crime,
period of entrance and discharge from the hospital,
date of admission to the prison, time in county prison
before conviction, disease, if afflicted with scrofula
before admission, scrofula during the first, second
and third six months after admission to prison, and
of the prescriptions and treatment of each case.
S 938. The physician must make a yearly report
to the inspectors, of the sanitary condition of the
prison for the past year, in which all the information
contained in his daily record and his monthly reports
shall be condensed.
Must keep
record of
a daily
admissions
to the hos
pital.
Must make
report to
a yearly
the inspec
tors.
may require
physicians
Sing and
at Sing
$939. If the inspectors deem it necessary, they Inspectors
may require the physicians at Sing Sing and Clinton
prisons, respectively, to reside in the prison, and in
that case they may, in their discretion, add, not
exceeding one hundred dollars, to the salary of each
of the said physicians respectively.
Laws of 1847, ch. 460, § 63.
CHAPTER IX.
THE CHAPLAINS.
SECTION 940. Chaplain must perform religious services.
941. Must visit convicts in their cells.
942. Must see that books are furnished.
943. Must take charge of library.
944. Must visit the sick.
945. Must make an annual report to the inspectors.
946. Must make a quarterly report.
Clinton to
reside in
the prison.
346
THE PENAL CODE
Chaplain
must per-
form reli-
gious servi-
ces.
Must visit
convicts in
S940. The chaplain of each prison must perform
religious services in the prison, under such regula-
tions as the inspectors may prescribe, and attend to
the spiritual wants of the convicts.
Laws of 1847, ch. 460, § 60, subd. 1.
$941. The chaplain must visit the convicts in
their cells. their cells for the purpose of giving them religious
and moral instruction, and devote at least one hour
in each week day, and the afternoon of each Sun-
day, to such instruction.
Must sec
that books
are fur-
nished.
Must take
charge of
library.
Must visit
the sick.
Must make
an annual
report to
the inspec-
tors.
Ibid., subd. 2.
S 942. The chaplain must see that a bible and
hymn book is furnished, by the warden, to each
convict.
See lbid., subd. 3.
S 943. The chaplain must take charge of the
library, and take care that no improper books are
introduced into the cells of the convicts, and if any
such books are found, either in the cells or in the
possession of a convict, he must take away and
return the same to the warden; and for the purpose
of properly discharging these duties, he must visit,
weekly, each cell in the prison.
Ibid., subd. 4.
S 944. The chaplain must visit, daily, the sick in
the hospital.
Ibid., subd. 5.
S 945. The chaplain must make an annual report
to the inspectors, up to the first day of December,
relative to the religious and moral conduct of the
prisoners during the past year, stating therein what
services he has himself performed, and the fruits, if
any, of his instructions. He must append thereto,
as far as practicable, in tabular form, a statement
exhibiting the number of convicts then in prison,
the number of white males between the ages of
twenty and thirty, thirty and forty, forty and fifty,
1
OF THE STATE OE NEW YORK.
347
fifty and over, and, in like manner, of colored males,
white females, and colored females, the number born
in the United States, foreigners and of what country,
the number that cannot read, that can read only, or can
read and write, are well educated, classically educated,
temperate, intemperate, health, whether scrofulous,
whether employed at the time of the commission of
the crime, counties where convicted, occupation, sen-
tence, how many times recommitted, and whether
married or unmarried.
See Ibid., subd. 6.
a quarterly
$ 946. The chaplain must make a quarterly report Must make
to the inspectors, stating the number of convicts report.
that shall have been instructed during the last quar-
ter by the instructors or instructress, the branches of
education in which they have been instructed, the
text books used in such instruction, and the progress
made by the convicts, and must note, especially, any
cases in which an unusual progress has been made
by a convict.
Laws of 1847, ch. 460, § 62.
CHAPTER X.
THE INSTRUCTORS AND INSTRUCTRESS.
SECTION 947. Duty of instructors and instructress.
948. Instruction, when to be given.
S947. The instructors at the several state prisons,
and the instructress at the female department of the
Sing Sing prison, in conjunction with and under the
supervision of the chaplain, must give instruction in
the useful branches of an English education to such
convicts as, in the judgment of the warden or the
chaplain, may require the same and be benefited
by it.
This section and the next are suggested as substitutes.
for Laws of 1847, ch. 460, § 61, and Laws of 1849, ch.
141, § 5, which are as follows:
"
'Two instructors shall be appointed by the board of
inspectors for each of the prisons at Sing Sing and
Duty of
instructors
and instruc
tress.
348
THE PENAL CODE
Instruction,
when to be
Auburn, and one for the Clinton state prison; it shall be
the duty of such instructors, in conjunction with and
under the supervision of the chaplain, to give instruction
in the useful branches of an English education to such
convicts as, in the judgment of the warden or the chap-
lain, may require the same and be benefited by it; such
instruction shall be given for not less than one hour and
a half daily, Sunday excepted, between the hours of six
and nine in the evening."
Laws of 1847, ch. 460, § 64.
"The inspectors of state prisons shall appoint one
instructress for the female convict prison at Sing Sing,
whose duty it shall be, in conjunction with and under
the supervision of the chaplain, to give instructions
in the useful branches of learning to such convicts
as, in the judgment of the matron or the chaplain, may
require the same and be benefited by it; such instruction
to be given for not less than one hour and a half daily
(Sundays excepted), between the hours of four and six
in the afternoon.
Laws of 1849, ch. 141, § 5.
S948. Such instruction must be given for not less
given. than one hour and a half daily, Sunday excepted,
between the hours of six and nine in the evening.
A guard to
be main-
tained at
each prison.
Guards to
be furnish-
ed with
arms, &c.
CHAPTER XI.
THE GUARDS.
SEOTION 949. A guard to be maintained at each prison.
950. Guards to be furnished with arms, &c.
$949. There shall be maintained at each state
prison a guard, to be employed by the inspectors,
to consist of one sergeant and so many privates as
the inspectors may, from time to time, direct; but the
guard at Sing Sing, including the sergeant, shall not
exceed thirty in number; the guard at Auburn shall
not exceed the number of twenty, and that at Clin-
ton shall not exceed the number of twenty-five.
Laws of 1847, ch. 460, § 64.
$950. The guards of the respective prisons shall
be furnished from the arsenals of this state with
sufficient arms, ammunition and accoutrements, and
1
OF THE STATE OF NEW YORK.
349
are subject to the command and direction of the
warden of the prison.
Taken from Laws of 1847, ch. 460, § 65.
CHAPTER XII.
THE MILITARY COMPANIES AT SING SING AND
AUBURN.
SECTION 951. Two military companies to be organized.
952. Their organization prescribed.
953. Arms, &c., to be kept in good order.
954. Companies to be always ready for service.
955. Companies, how formed, and officers, how appointed.
956. Restriction as to serving as firemen, &c.
957. Companies named "Sing Sing Guards" and "Auburn
Guards."
958. Vacancies, how to be filled.
959. Return of delinquents to be made.
960. Delinquents may be fined.
961. Fines, how to be collected.
962. Fines, how to be applied.
963. Officers may be dismissed for neglect of duty.
964. Service for ten years to exempt from future military duty.
S951. For the safety of the Sing Sing prison, a
military company shall continue to be organized in
the village of Sing Sing; and for the safety of the
Auburn prison, a similar company shall continue to
be organized in the village of Auburn.
Laws of 1847, ch. 460, § 112.
The commissioners simply continue the existing law,
upon this subject. They make no provision for a military
company at the Clinton prison, because the present law.
does not provide for one, and no new necessity requir-
ing one is known.
Two mili-
nies to be
tary compa-
organized.
ganization
S952. Each of these companies shall be formed Their or
from the persons liable to militia duty residing in Prescribed
the vicinity of the prison to which it is attached,
and shall consist of one captain, one first and second
lieutenant, four sergeants, four corporals, two drum-
mers, two fifers, and forty-five privates, who shall,
from time to time, as may be necessary, receive
350
THE PENAL CODE
Arms, &c.,
to be kept
in good
order.
Companies
to be always
ready for
service.
Companies,
how form-
ed, and offi-
appointed.
cers, how
Restriction
as to serv-
ing as fire-
men, &c.
arms, accoutrements, and ammunition, from the
state arsenal at Albany, upon the order of the war-
den of the prison.
Laws of 1847, ch. 460, § 113.
S953. The arms, accoutrements, and ammunition,
received by the members of each company, must be
kept by them, in good order, for their use, when
called upon, in defense of the prison; and, whenever
such arms, accoutrements, and ammunition, are de-
livered, the person receiving the same must execute
a receipt therefor, stating the purpose to which the
same are to be applied.
Laws of 1847, ch. 460, § 114.
$ 954. Each of said companies must always be
ready for immediate service, and must repair, with
their arms, on the first alarm or notice from the war-
den or principal officer of the prison, to the prison,
and there aid and assist, under his direction, in
defense of the prison, and in preventing the escape
of the convicts, or the execution of any injury
threatened or premeditated by them; and shall be
under his sole control.
Laws of 1847, ch. 460, § 115.
$ 955. Each of these companies must be formed
and organized by the commander-in-chief, and the
officers thereof designated, appointed and commis-
sioned, as in the case of uniform companies. The
persons composing them are exempt from all other
militia duty, and from serving on any grand or petit
jury so long as they respectively continue to be
members of such companies.
Laws of 1847, ch. 460, § 116.
$956. No person, duly enlisted into either of these
companies, shall, without the written consent of the
commanding officers of the company to which he
belongs, leave the same to serve as fireman in any
fire company, or to enlist into any other company of
OF THE STATE OF NEW YORK.
351
militia, except in case of a removal from out of the
beat of said company.
Laws of 1847, ch. 460, § 117.
$957. These companies are respectively known,
the first by the name of the Sing Sing Guards, and
the other by the name of the Auburn Guards. They
shall be ordered out for drill and exercise by the
commanding officer thereof not less than six nor
more than ten times in any one year.
See Laws of 1847, ch. 460, § 118.
Companies
named
"Sing Sing
ar
Anburn
Guards" &
Guards."
how to be
$ 958. Whenever the office of captain or subaltern Vacancies,
in either of these companies becomes vacant, the filled.
same shall be filled in the manner now provided by
law for filling vacancies in the companies of the
militia of this state, except that the warden of the
prison to which the company in which any such
vacancy happens shall be attached, must cause the
necessary notices of an election to fill vacancies, to
be served on the members of the company.
Laws of 1847, ch. 460, § 119.
delinquents
$ 959. The commanding officer of each company Return of
must return as a delinquent, to the inspector having to be made.
charge of the prison, any non-commissioned officer,
musician or private of the company, who does not
appear on parade in the complete uniform of the
company, or who is guilty of any neglect of duty or
improper conduct on parade.
Laws of 1847, ch. 460, § 120.
quents may
S 960. The inspectors of the prison may summon Delin-
any person so returned as a delinquent, to appear be fined.
before them, at such time and place as they shall
appoint, to answer to such alleged delinquency, and
upon proof of such summons having been served,
may proceed, at the time and place therein specified,
to impose upon such delinquent such fine, not ex-
ceeding five dollars for each offense, as in their
judgment the case may require.
Laws of 1847, ch. 460, § 121.
352
THE PENAL CODE
Fines, how
to be col-
lected.
Fines, how
to be ap-
plied.
Officers
may be
dismissed
for neglect
of duty.
Service
for ten
years to
exempt
S961. The president of the board of inspector
shall make out his warrant for the collection of suc
fines, in like manner, and with like effect, as a presi
dent of a court martial; the warrant shall be directe
to any constable in the county in which the fine shal
be imposed, commanding him to levy and collec
such fine; and such constable shall collect such fin
in like manner as other militia fines are now directe
by law to be collected.
Laws of 1847, ch. 460, § 122.
S962. All moneys collected by virtue of such war
rant shall be paid over to the commanding officer o
the company to which the delinquent upon whor
such fine may be imposed shall belong, and may b
applied, by a vote of the company, to any beneficia
purpose that the company may direct.
Laws of 1847, ch. 460, § 123.
$963. If any officer of either of the said comp:
nies neglects to perform any duty enjoined upon hir
by law, it is the duty of the commander-in-chie
upon such neglect being reported by the inspectors
to dismiss such officer from the company; and if an
non-commissioned officer or private refuses or neg
lects to perform his duties, such delinquent, in addi
tion to the fine herein before prescribed, may b
discharged by the commanding officer of the com
pany to which he shall belong, and another perso
may be enrolled in his stead.
Laws of 1847, ch. 460, § 124.
S964. Every non-commissioned officer, musicia
or private of either of said companies who sha
from future serve faithfully therein for the period of ten years
shall thereafter be exempt from militia duty in thi
state, except in cases of insurrection or invasion.
military
duty.
See Laws of 1847, ch. 460, § 125.
OF THE STATE OF NEW YORK.
353
CHAPTER XIII.
THE FIRE COMPANY AT AUBURN.
SECTION 965. Fire company at Auburn prison.
966. To attend on alarm of fire.
967. To attend to the fire engine.
968. Privileges of members of the company.
969. When entitled to discharge.
pany at
prison.
$ 965. There shall continue to be organized, in the Fire com-
vicinity of the prison at Auburn, one fire company, Auburn
to consist of one foreman and thirty-six men residing
in that vicinity.
Laws of 1847, ch. 460, § 127. The commissioners
simply continue the existing law upon this subject. They
make no provision for fire companies at Sing Sing and
Clinton prisons, because the present law does not author-
ize them, and no new necessity for requiring them is
known.
$ 966. It is the duty of such company, on the first
alarm or notice of a fire in the prison, or in any of
the adjacent buildings, to repair to the prison, and
there to use and manage, under the direction of the
warden, the engine belonging to the prison, and to
aid by all means in their power, in the preservation
of the prison, and of the persons confined therein.
Laws of 1847, ch. 460, § 128.
S967. It is also the duty of such company to
attend to the engine, and to exercise and try it at
such stated times as the inspectors or warden shall
prescribe; and the inspectors may, in their discretion,
remove any member of the company and appoint
another person in his stead.
Laws of 1847, ch. 460, § 129.
$968. The members of the fire company shall,
upon the certificate of the board of inspectors, be
exempt from serving on juries, and from serving in
To attend
of fire.
on alarm
To attend
to the fire
engine.
Privileges
of members
of the com-
pany.
45
354
THE PENAL CODE
When enti-
tled to
the militia, except in cases of invasion, or insurrec-
tion, so long as they continue such members.
Laws of 1847, ch. 460, § 130.
$969. The members of the fire company, after
discharge. service of nine years therein, shall be exempt from
militia duty, except in time of war or insurrection, and
shall be entitled to a discharge from the company.
Laws of 1847, ch. 460, § 131.
Certificato
of convic-
tion to be
delivered
with con-
vict.
CHAPTER XIV.
THE CUSTODY, CONDUCT AND DISCIPLINE OF
CONVICTS.
SECTION 970. Certificate of conviction to be delivered with convict.
971. Convict to be kept single in cells at night, &c.
972. Convicts to be provided with food, clothing and bedding.
973. Provisions to be furnished by contract.
974. The articles of food to be prescribed by inspectors.
975. Notice of supplies wanted, to be published.
976. Proposals must specify the lowest price.
977. Contracts must be in writing.
978. Provision in case of violence being offered by convicts.
979. Restrictions as to inflicting blows on convicts.
980. Certain convicts may be confined in solitary cells.
981. Inspectors to visit such cells.
982. Apprehension of escaped convicts.
983. Rewards, how to be paid.
984. Letters, &c., to convicts must be examined.
985. In certain cases of death, a coroner's inquest may be held.
986. Bodies of convicts dying at Sing Sing, when to be given
for dissection.
987. The like at Auburn prison.
988. Children of female convicts.
989. Restriction as to sale of liquors near Clinton prison.
S970. Whenever any convict is delivered to the
warden of either state prison, the officer having such
convict in his charge, must deliver to such warden
the certified copy of the sentence received by such
officer from the clerk of the court by which such
convict shall have been sentenced, and take from the
warden a certificate of the delivery of such convict.
Laws of 1847, ch. 460, § 86.
9
OF THE STATE OF NEW YORK.
355
S 971. Whenever there are a sufficient number of
cells in the prison, it is the duty of the warden to
keep each convict single in his cell at night, and also
in the day time when not employed.
Laws of 1847, ch. 460, § 104.
S 972. Convicts confined in the state prisons are
entitled to be provided, at the expense of the state,
with a sufficient quantity of inferior but wholesome
food, and with inferior but comfortable clothing and
bedding. Such clothing must be manufactured, as
far as practicable, in the prison.
Laws of 1847, ch. 460, § 105.
S973. The convicts in each prison shall be sup-
plied with provisions by contract, to be made by the
warden, under the direction of the inspectors, with
such person and for such a term, not exceeding one
year, as the inspectors may determine to be most
advantageous to the state, at a fixed price per day
for each convict, or they may, at their option, require
the warden of the prison to furnish the rations by
purchase.
Laws of 1847, ch. 460, § 78.
S 974. The kinds of provisions and the quantities
of each kind, shall be prescribed by the inspectors
and inserted in the contract; and so many rations
shall be delivered at the prison daily, or at such other
times as may be agreed on, as there are convicts
confined therein.
Laws of 1847, ch. 460, § 79.
S975. For the purpose of ascertaining who will
furnish supplies on the lowest terms, the warden
must cause a notice to be published in a newspaper
printed in the county in which the prison is situated,
and in such other newspapers, and for such time as
the inspectors may direct, stating the particular sup-
plies wanted, the manner in which they are to be
delivered, and the time during which proposals will
be received by such agent for furnishing the same.
Laws of 1847, ch. 460, § 80.
Convicts to
single in
night, &c,
be kept
cells at
·
Convicts to
with food,
clothing
be provided
and bed-
ding.
Provisions
to be fur-
nished by
contract.
The articles
be pre-
inspectors.
of food to
scribed by
Notice of
wanted, to
supplies
be pub-
lished.
356
THE PENAL CODE
Proposals
must spe-
cify the
lowest
price.
Contracts
must be in
writing.
Provision
in case of
violence
being
offered by
convicts.
Restric-
tions as to
inflicting
blows ou
convicts.
S976. The proposals to be offered pursuant to such
notice, must specify the lowest price per ration per
day, and the contracts must be made with those
persons whose terms shall be most advantageous to
the state, and who shall give satisfactory security
for the performance of their contracts, unless the
inspectors shall deem it expedient to decline all pro-
posals and advertise anew.
Laws of 1847, ch. 460, § 96.
$977. All contracts to be made under last four
sections, must be reduced to writing and signed by
the parties; a duplicate, so signed, of every such
contract shall be filed with the clerk of the prison,
and a copy thereof shall be delivered to the inspector.
Unless these provisions are complied with, the con-
tractor shall have no right to recover for any articles
supplied under such contract.
•
See Laws of 1847, ch. 460, § 82. The last sentence is
added by the commissioners to protect the state against
frauds by contractors.
$978. When any convict offers violence to any
officer of the state prison or to any other convict, or
does or attempts to do any injury to the building
or any work shop, or to any appurtenances thereof, or
property therein, or attempts to escape, or resists
or disobeys any lawful command, the officers of the
prison shall use all suitable means to defend them-
selves, or to enforce the observance of discipline, to
secure the persons of the offenders, and to prevent
any such attempt or escape.
Laws of 1847, ch. 460, § 106.
S 979. No officer in any state prison shall inflict
any blows whatever upon any convict, unless in self-
defense, or to suppress a revolt or insurrection. If
in the opinion of the warden of such prison, it is
necessary in any case to inflict unusual punishment
in order to produce the entire submission or obedience.
of any convict, it is the duty of such warden to con-
OF THE STATE OF NEW YORK.
357
fine such convict immediately in a cell, upon a short
allowance, and to retain him therein until he shall
be reduced to submission and obedience. The short
'allowance to each convict so confined shall be pre-
scribed by the physician, whose duty it shall be to
visit such convict and examine daily into the state
of his health, until the convict be released from soli-
tary confinement and returned to his labor.
Laws of 1847, ch. 460, § 108.
convicts
may be con-
solita
'fined in
solitary
cells.
S 980. Whenever any convict is found incorrigibly Certain
disobedient to the rules of either of the state prisons,
the warden must confine him in one of the solitary
cells provided for in section 807, at hard labor, and
when practicable, he must, when so confined, be
employed at the same trade or business he was
employed in immediately previous to such solitary
confinement.
Laws of 1847, ch, 460, § 45.
to visit
981. It is the duty of the inspector having charge, Inspector
at the time, of each prison, to visit such cells from such cells.
time to time, and examine into the causes of con-
finement of each convict thus confined, and he may
designate the length of time during which such
solitary confinement, in each individual case, shall
continue, subject to the approval of the board of
inspectors at each meeting thereof, held at such
prison. It is the duty of the inspectors to regulate
and control such solitary confinement; and to pre-
scribe the fare and treatment of all convicts so con-
fined, and they may adopt such rules and regulations
in reference thereto as they deem proper, not incon-
sistent with the existing laws.
Laws of 1847, ch. 460, § 46. The commissioners think
it better to vest the power to designate the length of
time during which solitary confinement shall continue,
wholly in the inspector, instead of allowing him, as in
the existing law, to designate it "if the warden shall
concur." To make the power of the inspector dependent
on the concurrence of the warden, deprives the convict
858
THE PENAL CODE
Apprehen.
sion of
escaped
convicts.
Rewards,
how to be
paid.
Letters,
&c., to con-
be exam-
ined
of efficient protection in case he has excited unreasona-
ble prejudice or ill will on the part of the warden.
S 982. Whenever any convict confined in a state
prison escapes therefrom, it is the duty of the warden
to take all proper measures for the apprehension of
such convict; and in his discretion he may offer a
reward not exceeding fifty dollars, for the apprehen-
sion and delivery of every such convict, and with the
consent of the inspector in charge of the prison, such
reward may be increased to a sum not exceeding two
hundred and fifty dollars.
Laws of 1847. ch. 460, § 109, as amended Laws
of 1860, ch. 399, § 7.
$983. All rewards and other sums of money neces-
sarily paid for advertising and apprehending any
convict who may escape from a state prison, must be
paid by the warden out of the funds of the prison.
Laws of 1847, ch. 460, § 110.
S 984. No letter, writing, picture or sign can be
victs must delivered to any convict, nor can any, written or made
by a convict, be sent from the prison, until the same
has been examined and read by the warden, or by
some other officer of the prison authorized by the
warden..
In certain
cases of
death, a
coroner's
inquest
may be
held..
Taken from Laws of 1847, ch. 460, § 107. Other pro-
visions of that section are omitted here, because they
have already been embraced in section 221 of this Code,
deemed a more appropriate place.
S 985. Whenever a convict shall die in any state
prison, it is the duty of the inspector having charge
of the prison, and of the warden, physician and chap-
lain of the prison, if they or either of them have
reason to believe that the death of the convict arose
from any other than ordinary sickness, to call upon
the coroner having jurisdiction, to hold an inquest
upon the body of such deceased convict.
Laws of 1847, ch, 460, § 102.
1
OF THE STATE OF NEW YORK.
359
$986. Whenever a convict shall die in the Sing
Sing prison, it is the duty of the warden, unless the
body of such convict be taken away for interment by
the relatives or friends of the deceased within twenty-
four hours after his death, to deliver on demand, such
dead body to the agent of the college of physicians
and surgeons in the city of New York, or to the
agent of the medical faculty of the university of
the city of New York, so that one-half of the number
of such dead bodies shall be delivered to each institu-
tion.
'
Laws of 1847, ch. 460, § 132.
S 987. It is in like manner the duty of the warden
of the Auburn state prison, whenever a convict dies
in that prison, whose body shall not be taken away
for interment by his relatives or friends within twenty-
four hours after his death, to deliver on demand, such
dead body to the agent of the medical faculty of the
university of Buffalo, or to the agent of the medical
faculty of Geneva college, so that one-half of the
number of such dead bodies shall be delivered to
each institution.
Laws of 1847, ch. 460, § 133.
Bodies of
dying at
convicts
Sing Sing,
when to be
given for
dissection.
The like at
prison.
Auburn
female con-
victs.
$ 988. All children born of female convicts in the Children of
female department of the Sing Sing prison, may, by
an order of the warden of the prison, be sent to the
poor house in the county of Westchester, to be there
supported upon such terms as may be agreed upon
between the warden and the superintendent of the
poor of the county; and all expenses incurred there-
by shall be paid by the warden out of the funds of
the prison. But no child under the age of two years
shall be so sent away, if its mother be able and will-
ing to nurse it.
See Laws of 1847, ch. 460, § 134. The last sentence
of the section is added in view of the necessity that the
child should be in the care of its mother during early in-
fancy.
360
THE PENAL CODE
Restriction
as to sale
of liquors
near Clin-
$989. No license shall hereafter be granted for the
sale of intoxicating liquors within three miles of
ton prison. the Clinton prison; and every person who shall,
directly or indirectly, sell or dispose of any alcoholic
drinks within the distance of three miles from that
prison, shall, upon conviction thereof, before any
justice of the peace of the county of Clinton, be
subject to a penalty of fifty dollars; one-half thereof
to be paid to the person prosecuting for the same,
and the other half to be paid to the persons charged
with the support of the poor of the town in which
the offense was committed.
See Laws of 1847, ch. 460, § 144.
CHAPTER XV.
THE EMPLOYMENT OF CONVICTS.
SECTION 990. Convicts to be kept at hard labor.
991. Courts to examine convicts as to their having learned a
trade.
992. Convicts not to be permited to work at any other trade.
993. Trade of convicts who were previously in state prison.
994. Officers not to employ convicts.
995. Penalty for hiring convicts contrary to law.
996. Attorney-general to prosecute in certain cases.
997. The warden to let the services of convicts under directions
from board of inspectors.
998. Warden must advertise for proposals and prepare form of
contract.
999. Sureties of contractor must justify.
1000. Warden must submit proposals to inspectors.
1001. Inspectors to award contract.
1002. Effect of the contract.
1003. What the contract must not contain.
1004. What it must contain.
1005. Penalty for bidder's refusal to complete the contract.
1006. Inspectors may advertise anew.
1007. Contracts for labor of convicts for one year or less.
1008. Debt of contractor a lien upon his tools, &c.
1009. Contractor to deposit money with comptroller as security.
1010. Citizen labor not to be employed, except, &c.
1011. Clothing for convicts in Clinton prison.
1012. The Sing Sing and Auburn prisons to be credited for
clothing.
1013. Purchases made for the Clinton prison to be for cash.
1
OF THE STATE OF NEW YORK.
361
1014. Warden must deposit moneys to the credit of the state.
1015. Warden of Sing Sing prison may let services of convicts for
a term of years.
1016. The contract must be in writing.
1017. Services of convicts, how to be paid for.
$990. All convicts in a state prison must not be
allowed to converse with each other and must be kept
constantly employed at hard labor during the daytime,
not exceeding twelve hours, except when incapable of
laboring by reason of sickness or bodily infirmity.
Laws of 1847, ch. 460, § 103. The prohibition on
conversing, and limit of time, are new.
S991. It is the duty of the court in which any per-
son shall be convicted of an offense punishable in a
state prison, before passing the sentence, to ascertain
by the examination of such convict on oath, and in
addition to such oath, by such evidence as can be ob-
tained, whether such convict has learned and practiced
any mechanical trade. The clerk of the court must
enter the facts as ascertained and decided by the court,
on the minutes thereof, and deliver a certificate stating
the facts as ascertained, to the sheriff of the county,
who must cause the same to be delivered to the war-
den of the proper prison at the same time that such
convict is delivered to the warden pursuant to his
sentence.
Laws of 1847, ch. 460, § 70. This provision should
be transferred to the Code of Criminal Pro-
cedure, Part II, tit. ix, ch. 1.
Convicts to
be kept at
hard labor.
Courts to
convicts as
ing learned
examine
to their hav-
a trade.
not to be
permitted
to work at
any ot
other
trade.
S992. No convict sentenced to imprisonment in Convicts
either of the state prisons shall be permitted to work
therein at any other mechanical trade than that which,
as shall appear by the certificate of the clerk of the
court in which he was convicted, such convict had
learned and practiced previous to his conviction, ex-
cept in the making or manufacture of articles of which
the chief supply for the consumption of this state is
imported from other countries or states, and except
that the convicts at Sing Sing prison may be employed
46
362
THE PENAL CODE
Trade of
convicts
who were
previously
in state
prison.
Officers not
to employ
convicts.
Penalty for
hiring con-
victs con-
trary to law.
in the cutting and manufacture of stone, and the con-
victs at Clinton prison in the manufacture of iron.
See laws of 1847, ch. 460, § 71.
S 993. If the warden of the prison in which any
convict is detained shall ascertain that such convict
has been previously in a state prison or penitentiary,
he may in his discretion, direct such convict to be
employed in the same kind of labor in which he had
been employed during such former imprisonment, not-
withstanding it may appear from the certificate of
the clerk of the court that a different trade had been
learned or practiced by him. And if the warden of
either prison shall ascertain to his entire satisfaction,
that any convict so certified, had not in fact learned
and practiced previous to his conviction, the trade
mentioned in the certificate, he may, with the appro-
bation of the inspector then having charge of such
prison, direct such convict to be employed in the trade
or kind of labor which he shall have ascertained by
competent proof that such convict had previously
learned and practiced.
See Laws of 1847, ch. 460, § 72.
S 994. No inspector, or officer of either prison shall
employ the labor of any convict or other person em-
ployed in such prison on any work in which such in-
spector, or officer shall be interested.
Laws of 1847, ch. 460, § 74.
S 995. Every inspector or warden of either of the
state prisons who knowingly lets or hires, or consents
to the letting or hiring of the labor or services of a
convict contrary to law, and every officer of either
prison who knowingly causes a convict to be em-
ployed at work prohibited by law, is punishable by
imprisonment in a county jail not exceeding one year
or by a fine not exceeding one thousand dollars.
See Laws of 1847, ch. 460, § 75.
1
OF THE STATE OF NEW YORK.
363
General to
in certain
$ 996. Whenever a complaint is made to the attor- Attorney-
ney-general, accompanied by satisfactory information prosecute
that any of the provisions of the two last preceding cases.
sections have been violated by an inspector, or by any
officer of either of the prisons, it is his duty to cause
the offender to be prosecuted; and any indictment for
such an offence may be found or tried in any county
in which the offense was committed, or in an adjoin-
ing county.
Laws of 1847, ch. 460, § 76.
$997. Whenever the board of inspectors deem it
expedient for the warden of either of the prisons to
enter into any contract for the labor and services of
convicts for a term of more than one year, they shall
pass a resolution to that effect, specifying the number
of convicts whose labor and services are to be let, the
prison in which they are confined, the business at
which they are to be employed, the number of years
for which their labor and services are to be let, the
time the contract shall commence, the shop rooni,
yard room, store room, hydraulic or steam power, ma-
chinery and other facilities, if any there be, for the
business which will be furnished with the labor and
services to be let, and directing the warden to adver-
tise for sealed proposals therefor in the state paper,
in one newspaper published in the county where said
prison is located, and in one newspaper published in
each of the cities of this state.
This section and the nine which follow, are taken
from Laws of 1847, ch. 460, § 77, as amended Laws of
1854, ch. 240, § 9. and further amended Laws of 1860,
ch. 399, § 12.
S 998. Upon the passage of any such resolution and
the serving a copy thereof upon the warden, that of-
ficer must proceed at once to execute it, by preparing
and publishing, for the period of thirty days next pre-
ceding the time fixed for opening such proposals, the
notice required in the manner above provided, and by
preparing a duplicate form of the contract to be en-
The warden
services of
under di-
to let the
convicts
rections
from board
of inspec-
tors.
Warden
tise for pro-
prepare
must adver-
posals and
form of con-
tract.
364
THE PENAL CODE
Sureties of
contractor
fy.
tered into, with the date, amount of compensation per
day, and the names of contractors, and their sureties,
in blank, to be approved by the inspectors or a ma-
jority of them. A copy of such contract must be
deposited with the clerk of the prison at which such
convict labor is to be let, for the inspection of all per-
sons desirous of proposing therefor, for at least the
period of twenty days prior to the time fixed in such
notice for opening such proposals.
S 999. To every proposal for convict labor, shall be
must justi annexed a justification of the sureties, in an amount
in the aggregate not less than the sum of five thou-
sand dollars, over and above all debts and liabilities
and property exempt from execution.
Warden
must sub-
sals to in-
spectors.
S1000. The warden must receive and preserve un-
mit propo- opened all the sealed proposals for such labor and ser-
vices which shall be delivered to or received by him
up to the day and hour mentioned in his published
notice, and no longer; and must thereupon, or as soon
thereafter as the board of inspectors shall convene,
lay the proposals before the board of inspectors.
Inspectors
to award
contract.
S1001. The inspectors must proceed at once pub-
licly to open and canvass such of the proposals as are
substantially in the form prescribed in the published
notice of the warden, and are accompanied by an offer
to enter into the contract for the labor of such con-
victs which has been prepared and deposited with the
clerk, with the name of the bidder and the price per
day for the labor and services of the convicts which
he proposes to pay, and with the names of at
least two sufficient sureties accompanied by their
written consent to become sureties in such contract;
and they shall award the contract for such labor and
services to the person or persons who shall be found
to be, by such canvass, the highest bidder or bidders
therefor; and shall thereupon direct the warden to fill
up the blanks in such contract pursuant to such pro-
posal, and execute the same with such bidder.
OF THE STATE OF NEW YORK.
365
the con-
$ 1002. Such contract when so filled up and signed, Effect of
and approved by the inspectors or a majority of them, tract.
as to the sufficiency of the sureties therein, shall be a
valid contract in law with the parties thereto and their
sureties.
$ 1003. No such contract shall be executed by the
warden or be valid in law, which contains any stipu-
lation on the part of the warden to accept any less
than the full contract price (which shall be the price
per day only) for the labor and services of any of the
convicts referred to in the contract, or that the con-
victs shall execute any specific amount of labor per
day, per month or year, or that they shall have or
possess any particular degree of skill in the trade or
business at which they are to be employed, or that
the contractor or contractors shall have any accom-
modations or facilities for business or privileges which
were not specified in the contract prepared and de-
posited with the clerk as provided by section 998 or
that the warden shall maintain any particular kind,
staudard, or quality of discipline in said prison over
the convicts, during the time they shall be employed
under such contract.
$ 1004. No such contract shall be executed by the
warden, or be valid in law, if it runs for a longer time
than five years from the time when it is by its terms
to commence; nor unless it contains a stipulation on
the part of the contractor, to pay the contract price
for the labor and services therein specified, monthly,
on the first day of each month, to the warden, at his
office at the prison; and a stipulation that the warden
may, by and with the consent of the board of inspec-
tors, or a majority of them, annul the contract and
declare it void, if the contractor at any time neglects
or refuses to make the monthly payments within ten
days from the time they shall respectively fall due;
and a stipulation that the state will not be held re-
What the
must not
contract
contain.
What it
must con-
tain.
366
THE PENAL CODE
Penalty for
bidder's re-
fusal to
complete
the con-
tract.
Inspectors
may adver-
tise anew.
sponsible for any loss sustained by fire on the part of
any contractor.
$ 1005. In case any bidder to whom any contract
may be awarded, refuses, or for twenty-four hours
after award made to him neglects to execute such con-
tract, with at least two sufficient sureties, to be ap-
proved by the inspectors, or a majority of them; he
shall pay to the warden as stipulated damages for
such refusal or neglect, a sum equal to the difference
between the aggregate of earnings of the number of
convicts specified in such contract, at the price per
day named in the proposal of such bidder, for the term
of such contract, and the aggregate of earnings of
such number of convicts at the price per day at which
the same shall be finally awarded; and the warden
shall have an immediate right of action against such
bidder so neglecting or refusing, and his proposed
sureties, for the recovery of such damages; and unless
the same shall be paid within thirty days after per-
sonal demand thereof of such bidder, the warden shall
forthwith bring suit for the recovery thereof.
S 1006. If upon opening such proposals, the inspec-
tors with the assent of the warden, deem it for the
interest of the state not to award the contract to any
of the bidders, they may reject all of the proposals,
and re-advertise the contract, and if after awarding the
contract to any bidder or bidders, who refuse or ne-
glect to enter into such contract, the inspectors do
not deem it for the interest of the state to award the
same to any person bidding a lower rate of compen-
sation, they may reject all lower bids, and re-advertise;
and any bidder whose proposal has been accepted by
the inspectors and who has refused or neglected to
enter into such contract, shall be liable to the warden
for the expenses of such re-advertisement, in addition
to the damages by reason of such refusal or neglect, to
be computed as herein before provided.
1
1
OF THE STATE OF NEW YORK.
367
for labor of
convicts for
one year or
less.
$ 1007. Whenever the board of inspectors deem it Contract
expedient and proper for the warden of either prison
to enter into any contract for the labor and services
of convicts for a term not exceeding one year, it shall
be the duty of the board to pass a resolution to that
effect, specifying the number of convicts whose labor
and services are to be let, the prison in which they are
confined, the business at which they may be employed,
if contracted for, the time when a contract therefor
may commence, and the shop or yard room, store
room, and the accommodations and facilities for car-
rying on the proposed business or labor which will be
furnished with such labor and services, directing the
warden to ascertain what price per day he can obtain
for such labor and services and report the same to the
board; and if upon advisement the board shall con-
sider it for the interest of the state to accept the highest
price thus offered and reported, they shall pass a reso-
lution to that effect, directing the warden to enter
into a contract in the form prescribed in the preceding
sections with the party making the proposal and his
sureties.
Laws of 1860, ch. 399, § 13.
$ 1008. In all contracts let or awarded for convict
labor at any state prison, a clause must be inserted
that any debt which may be or become due from any
contractor upon such contract shall be a lien, in favor
of the prison, upon the machinery and tools used or
owned by such contractor in operating such contract
upon the prison premises. Such lien commences with
such contract, and continues during the existence of
the contract, and until the claim or debt has been sat-
isfied or canceled. And the warden of the prison,
under the direction of the inspectors or a majority of
them, whenever any sum becomes due from a con-
tractor, may proceed to satisfy such lien by a sale of
the property affected by it in the same manner as by
a sale upon a chattel mortgage.
See Laws of 1863, ch. 465, § 1.
Debt of con-
lien upon
tractor a
his tools,
&c.
368
THE PENAL CODE
Contractor
to deposit
$ 1009. In all contracts let or awarded for convict
money with labor, at any state prison, a clause must be inserted
comptrol-
ler, as se-
curity.
Citizen la-
bor not to
ed except,
&c.
requiring the contractor to deposit with the comp-
troller of the state a sum of money not less than five
hundred dollars, and not greater than two thousand
dollars, as the inspectors may determine, according
to the nature of the contract; and no contract shall
be valid until such deposit has been made. Such
money shall remain on deposit with the comptroller
as security for the payment of any debt which may
arise on the contract during the continuance thereof,
and until such debt be adjusted. The comptroller
may apply such money upon and towards the liquida-
tion of any such debt which may become due. When
ever the sum so to be applied does not suffice to meet
such debt, it becomes the duty of the inspectors forth-
with to annul such contract, and the same shall be
and become immediately annulled. The labor and
services of the convicts provided for in such contract
may thereupon be relet and contracted anew, but not
to such defaulting contractor. Nor shall any other
contract for convict labor be awarded to any person
who shall have been a defaulting contractor. But the
annulment of such contract does not cancel any lien
existing thereby upon machinery and tools, for any
indebtedness then existing.
Laws of 1863, ch. 465, § 2.
$ 1010. It is not lawful for any person holding a
be employ contract for convict labor at any state prison to em-
ploy in the shops or grounds of such prison, upon the
ordinary work of convicts as carried on at such prison,
any other persons than convicts, without the permis-
sion of the board of inspectors, as foremen, superin-
tendents, teamsters or otherwise.
Clothing
for convicts
in Clinton
prison.
See Laws of 1863, ch. 465, § 3.
S 1011. All necessary clothing for the use of the
convicts in the Clinton prison shall be manufactured
1
OF THE STATE OF NEW YORK.
369
by the convicts in the Auburn and Sing Sing prisons,
whenever a written order for that purpose shall be-
made by the inspectors and be delivered to the respec-
tive wardens of those prisons.
Laws of 1847, ch. 460, § 139.
S 1012. The Sing Sing and Auburn prisons shall re-
spectively have credit on the books of the comptroller
for the value of any cloth or clothing manufactured
in such prisons in conformity to law, for the use of the
Clinton prison, on making specific returns thereof,
verified as to quantity and value by the affidavit of
the agent of the prison manufacturing the same. The
sum so to be credited must be paid by the treasurer,
on the warrant of the comptroller, out of any moneys
in the treasury not otherwise appropriated, to the
order of the inspectors, whenever such payment be-
comes necessary to defray the expenses of the prison
entitled to the credit.
Laws of 1847, ch. 460, § 140,
The Sing
Auburn pri-
credited for
Sing and
sons to be
clothing.
made for
the Clinton
prison to be
for cash.
S 1013. The warden of the Clinton prison must Purchases
not deposit or pledge any article produced by the
labor of the convicts, by way of security for moneys
borrowed on the credit thereof or otherwise; and all
articles purchased by him for the use of the prison
or to be employed in conducting any of its operations,
must be purchased for cash, and not upon credit,
unless the inspector having charge of the prison
shall otherwise direct. The warden must make sale
of the articles produced by the labor of the convicts,
in such manner and on such terms as shall be pre-
scribed by the rules and regulations established from
time to time by the board of inspectors.
Laws of 1847, ch. 460, § 141.
S 1014. The warden of the Clinton prison, must,
under the direction of the comptroller, deposit to the
credit of the state, all moneys he may receive from
the sale of any manufactures produced in the prison,
whenever the same exceeds the sum of one thousand
Warden
posit
must de-
moneys to
the credit
of the state.
47
3701
THE PENAL CODE
Warden of
Sing Sing
dollars, and are not required, within fifteen days after
the receipt thereof, to defray the expenses of the prison.
Laws of 1847, ch. 460, § 142.
S1015. The warden of the Sing Sing prison is
prison may authorized to let, by contract, the services of such
det services
of convicts
for a term
of years.
The con-
tract must
be in writ-
ing.
Services of
convicts,
how to be
paid for.
number of convicts in that prison as he may have at
his disposal from time to time, to any such person
or persons as shall conform to the terms hereinafter
contained, to be employed in the business of quarry-
ing, splitting, sawing and removing stone from the
quarries on the state lands adjacent to the prison,
for fifteen years from the date thereof.
Laws of 1855, ch. 334, § 1.
S 1016. Such contract must be in writing and
approved by the inspectors of state prisons, and the
comptroller of this state, and shall guarantee to such
contractor the exclusive use of the quarries on the
state land at Sing Sing, and the right to get out and
quarry stone therefrom (reserving the right in the
warden to get out and quarry from any quarries now
opened, all necessary stone for building and improv-
ing in and about the prison), and the services of at
least one hundred convicts to be employed as men-
tioned in the last section, and all such other convicts
in the prison as are at the disposal of the warden at
any time during such term, without interfering with
the right of the warden, to re-advertise and let such
other contracts as may expire during such term.
Laws of 1855, ch. 334, § 2.
S 1017. Such contractor must covenant and agree
in the contract, to pay such warden for the services
of the convicts at the rate of not less than fifty cents
for each day's labor of each convict employed, with-
out reference to their skill; payment to be made
on the last day of each month after the contract
takes effect, and such payment to be secured in such
manner as shall be satisfactory to the warden and
OF THE STATE OF NEW YORK.
371.
inspectors, and the comptroller of this state; and the
contractor must further covenant and agree in the
contract, to build and construct, at his expense, all
such additional shops, buildings and docks, and put
up all necessary machinery for the purpose of carry-
ing on the business; and must further covenant and
agree in the contract, to take from the warden, and
employ under the contract all the convicts which
such warden shall tender to him under the same, not
to exceed one thousand convicts at any one time.
No such contract shall be assignable without the
consent of the inspectors.
See Laws of 1855, ch. 334, § 3.
CHAPTER XVI.
COMMUTATION OF SENTENCES.
SECTION 1018. Convicts may earn commutation of sentence.
1019. Convicts in the hospital.
1020. To whom the provisions apply
1021. Warden must notify convicts of the provisions of this
chapter.
1022. Keepers and matrons must keep record of work, and
of manner of doing it, and report the same.
1023. Governor may direct deduction from term of imprisonment.
may earn
of sen-
tence.
S1018. Every convict confined in any state prison Convicts
in this state, may earn for himself a commutation or commutan-
diminution of the term of his sentence, subject to
the provisions of section 1023, and in the manner
following: If he shall diligently work the number
of hours prescribed by the rules of the prison, during
each day that he is ordered to work, for the space of
one month, and if he shall obey the rules and quietly
submit to the discipline of the prison, for the space
of one month, he shall be entitled, for every period of
one month for which he shall so work, obey and sub-
mit, to a commutation or deduction from the term
for which he has been sentenced, of one day, unless
he shall subsequently forfeit the same by an assault
upon any officer, or any foreman or convict, or other-
372
THE PENAL CODE
the hospi-
tals.
wise endanger life, or by other flagrant disregard of
the rules of the prison, in which case all previous
commutations earned by him shall be wholly for
feited; but such shall not be the effect in cases
where, without any violence whatever, a rule or
rules shall be broken by him, and it is clear that no
willfulness or malice was intended. If he shall so
work and obey, as above, and submit, for the space
of six or more successive months, he shall be entitled,
for every one of those six or more successive months,
to a commutation or deduction from the term for
which he was sentenced, of two days, instead of the
commutation already mentioned. If he shall so work
and obey, for the space of two years or more, he shall
be entitled, instead of the commutation already men-
tioned, to a commutation of one month on each of
the first two years; of two months on each succeed-
ing year to the tenth year; and of four months on
each remaining year of the time of his imprisonment.
This section and the two which follow, are taken from
the Laws of 1862, ch. 417, § 2, as amended, Laws of
1863, ch. 415, and Laws of 1864, ch. 321, § 1. The last
mentioned act is obscurely framed, but the commissioners
have followed what they believe to be the intent of the
Legislature. See note to section 1023, infra.
The original act applies not only to state prisons,
but also to penitentiaries. It will be noticed that the
last section of this Code, which repeals the existing
statutes relative to prisons, repeals them only so far as
they apply to state prisons and county jails; and leaves
their provisions in force, in so far as they govern the dis-
cipline of penitentiaries and other institutions of special
character.
Convicts in $ 1019. During the period that any convict is con-
fined to the prison hospitals, if he is dutiful to the
rules thereof, time, as contemplated by this section,
shall not be counted either for or against the convict;
and a period of consecutive time before confinement
in hospital, and an additional period of consecu-
tive time after discharge therefrom, may be added
together and counted as six successive months, the
same as if no time had been passed in hospital, if
OF THE STATE OF NEW YORK.
373
the convict, during the entire period, shall have ful-
filled all the requirements of the last section.
S 1020. The provisions of the last two sections
apply to convicts serving as waiters and cooks in and
about any prison, and to female convicts, and to con-
victs for whom the warden has no work at which to
put them, under any contract for the labor of con-
victs. But they do not apply to any convict under
sentence of imprisonment for the term of his natural
life, nor to any convict confined under a sentence by
a court of the United States.
The exception of United States prisoners is new, but
seems plainly necessary, as the governor of the State of
New York has no power to remit any part of the sen-
tences of such prisoners.
S1021. It is the duty of every warden of a state
prison whenever a convict to whom the provisions of
this chapter can apply, is delivered to him for confine-
ment in the prison, to make such provisions known
to him.
Laws of 1862, ch. 417, § 3.
S 1022. It is the duty of the keepers and matrons
of each state prison, to keep such record, day by day,
of the manner of working of each convict therein to
whom the provisions of this chapter are applicable,
and of his or her conduct therein, as shall show
what convicts have fulfilled the requirements of the
section 1018, and to report such record at the end of
each month to the warden of the prison, and it is the
duty of the warden to preserve such record, and not
more than thirty days before the term of each convict
expires, as diminished by said record, to transmit to
the governor a certificate and report, showing that it
appears from the record kept by the keepers of the
prison of the manner of working and of the daily
conduct of each convict confined therein, duly pre-
served by him as required by law, that the convict
has diligently worked the number of hours prescribed
To whom
the provi.
sions apply.
Warden
convicts of
sions of this
must notify
the provi.
chapter.
Keepers
trons must
and ma-
keep record
of work, and
of manuer
of doing it,
and report
the same.
374
THE PENAL CODE
Governor
may direct
deduction
from term
of impris
onment.
by the rules of the prison, during each day that he
or she has been ordered to work, for the space of six or
more successive months, or otherwise, as the case may
be, and that he or she has well obeyed the rules and
strictly submitted to the discipline of the prison for
the space of six or more successive months, or other-
wise, as the case may be, and that the convict has
fulfilled all the requirements of this chapter. Such
certificate and report must give the name of the con-
vict, the county where convicted, the crime, the date
of conviction, at what court, by whom held, the
date of sentence, the term of sentence, and the time
the convict was received at the prison.
See Laws of 1862, ch. 417, § 4, as amended Laws
of 1863, ch. 415.
S 1023. The governor may thereupon in his dis-
cretion, direct the abatement or deduction of the
term of the sentence of such convict of the number
of days of commutation or diminution thereof which
such convict shall have earned.
Taken from Laws of 1862, ch. 417, § 4, as amended
Laws of 1863, ch. 415.
The following remarks, extracted from the Nineteenth
Annual Report of the Prison Association of New York,
will be read with interest in connection with this chapter:
"THE COMMUTATION SYSTEM.-On the 22d of April, 1862,
an act was passed by the Legislature, containing, among
others, the following provision: 'If he (a convict in any
state prison or penitentiary) shall diligently work the number
of hours prescribed by the rules of the prison or penitentiary
during each day that he is so ordered to work, for the space
of one month, and if he shall well obey the rules and quietly
submit to the discipline of the penitentiary for the space of
one month, he shall be entitled, for every period of one
month, for which he shall so work, obey and submit, to a
commutation or deduction from the term for which he has
been sentenced, of one day.. If he shall so work and obey
and submit for the space of six or more successive months,
he shall be entitled, for every one of said six or more succes-
sive months, to a commutation or deduction from the term
for which he was sentenced of two days, which two days
OF THE STATE OF NEW YORK.
875
shall be in addition to the deduction of one day for each
month hereinbefore provided for.'
"Two interpretations have been given to this provision, by
one of which the maximum of commutation for any space of
six months is eight days; by the other, eighteen. This
alleged obscurity of the law, and some other circumstances,
caused Gov. Morgan to decline all action under it. Accord-
ingly, no commutations were granted by him during the nine
months of his administration after the passage of the law.
"A year later, an amendatory act was passed, in which,
after providing, as in the original act, for a commutation of
one day for each several month, it is enacted as follows:
'If he (the convict) shall so work and obey as above, and
submit for the space of six or more successive months, he
shall be entitled, for every one of said six or more successive
months, to a commutation or deduction from the term for
which he was sentenced, of two days.'
"Under this provision, it is evident that twelve days are
the maximum of commutation that can be earned in any
space of six months. It would, therefore, be unnecessary to
discuss the meaning of the prior act, if there were not a class
of cases to which its provisions are still rightfully applicable.
If that be the true construction of the act of 1862, which
assigns eight days as the maximum for any space of six or
more successive months, then from any such period during
which commutation may have been earned under the said
act, four days less must be allowed than for an equal period
under the act of 1863. But if, according to the true intent
and meaning of the law, eighteen days constitute the maxi-
mum, then the convict, on his discharge, will be entitled to
six days for each space of six successive months additional
to the time allowed by the law as it now stands, and one day
more for each month in excess of six.
"The question of the true interpretation of the original
act, which was in operation a full year, is, therefore, of no
little interest to the convicts who were in prison during that
period. ·
"The interpreters who contend for eight days as the maxi-
mum for six or more successive months, affirm that, in using
that language, the Legislature meant every space of six or
more successive months, and not every one of said months.
To this it is enough to reply, that the whole statute must be
taken together. Every word in it must be supposed to have
a purpose, and the whole must be so construed as to render
376
4
THE PENAL CODE
each part effective. But, on the construction given above,
the words 'or more,' in connection with the words 'six
successive months,' cannot be shown to have a purpose, nor
can they be interpreted consistently with good sense or good
morals. They must be entirely ignored or they lead to
absurdity. Ignore them, and the construction alleged may be
made to appear plausible at least. But take the words as
they stand, give them life, and mark the consequence. Five
years of continued good conduct constitute but one space of
'six or MORE successive months,' and entitle the convict to
only one additional allowance of two days, and to only sixty-
two days in the whole five years, whereas the allowances for
five years, with a regular outbreak of disorder every seventh
month, would be for eight spaces of six months, and the con-
vict would be entitled to a commutation of sixteen days
instead of two. And this shortening of his imprisonment
by fourteen days would not simply be in spite of his insubor-
dination, but because of it. That is to say, the state would
not reward good conduct in proportion to its uninterrupted
continuance, but her choicest acts of grace would be reserved
for alternations of virtue and vice. Such a law might be an
encouragement to good conduct for six months, but it would
be an equal encouragement to bad conduct the seventh. It
cannot for a moment be supposed that the Legislature ever
intended such a combination of absurdity and immorality.
"It may be remarked in passing, that since the phraseology
of the original act and the amended act is the same in those
parts which designate the amount of commutation that may
be earned, if the construction combatted be the true one, it
would follow that the sum total of commutation capable of
being earned during any number of years of uninterrupted
good conduct under the amended act would be just two days,
for the whole would be but one space of 'six or more succes-
sive months.'
"We must, then, have recourse to the construction which
regards the additional allowance of two days as intended, not
for the term of six or more successive months, but for each
month in the term, thus giving three days as the maximum
per month, when the good conduct of the convict is main-
tained for six months or more without Interruption. This
construction avoids all the absurdities and difficulties of the
other. Moreover, it is the obvious construction-that which
lies upon the very surface of the statute-that which would first
occur to every reader. It takes the words 'every one' in
OF THE STATE OF NEW YORK.
377
their natural sense, as meaning every one of the six months,
and not in the forced signification of every space of six months.
It discloses a purpose in the words 'or more.' · It makes
those significant and effective, requiring the deduction of three
days per month to be continued for as many successive months
in excess of six as the conditions of the law are met by the
convict. The only rational conclusion is, that this construc-
tion of the law is the true one and correctly sets forth the
intent of the legislature in its enactment.
"The establishment of this construction, if it has been es-
tablished by the foregoing argument or can be by any other,
draws after it, by inevitable sequence, the obligation on the
part of the executive, to abide by it in determining the amount
of commutation to be granted to any convict, so far as the
commutation earned by him is covered by the period during
which the law was in operation. For instance, since the maxi-
mum under the original statute was three days per month,
while under the statute as amended it is only two, if the con-
vict behaved unexceptionably for twelve successive months
while the former law was in force, then on his discharge he
will be entitled to a deduction from his term of sentence of
twelve days, in addition to the twenty-four days to be remit-
ted, if the provisions of the existing law are allowed to exert
their force over the whole period of his imprisonment. This
is a material consideration to all convicts holding the relations
to the old law indicated above, and is, we have reason to
know, felt by them to be so; but, what is still more impor-
tant, if our construction of the law be correct, it is essential
to the maintenance of the honor of the state and the interests
of justice, that practical effect be given to the said inter-
pretation.
"The principle of this law is believed by this association to
be founded in reason and justice. The policy established by
it, we are no less firmly persuaded, is wise in itself, and, sup-
posing it to be permanently incorporated into our system of
prison discipline, its operation will be fruitful of good results.
The effect of this policy will be to change materially, in some
respects, the aspect and condition of prison life. In keeping
before the prisoner a permanent inducement to good conduct,
it will fortify the resolutions of many a feeble mind, and in
others it will counteract the tendency to feelings of despon-
dency, recklessness, and revenge, which their situation is apt
to engender, and in which many of them are prone to indulge.
In encouraging them to perform their work cheerfully, it will.
48
378
THE PENAL CODE
i
so far, have the good effect of converting coerced into volun-
tary labor, while, as a means of discipline, appealing to the
bet er feelings of all in whom such feelings still have a place,
and substituting rewards in place of punishments, and moral
instead of mere brute force, we feel confident that, properly
administered, its effect will be all that its most ardent advo-
cates can reasonably desire. A law of which all this can be
said with truth, and we believe it can be so said of the act
under consideration, needs no farther vindication.
"But the interesting inquiry arises here: what has been
the actual operation and effect of this law during the twenty
months of its existence on our statute books? In answering
this question we have the following remarks to submit:
"First. Twenty months are hardly a sufficient length of
time whereon to found an intelligent, reliable judgment, as to
the permanent results of a great innovation upon long estab-
lished usage, such as that which has been introduced into our
penal system by the law in question.
"Second. The history of the law and its treatment at the
hands of the public authorities, have been such as greatly to
obstruct its natural operation, and hinder the good effects
which it was designed and (as we believe) adapted to pro-
duce. For nine months after its passage, Governor Morgan
refused to act upon it at all. This was a severe blow at the
start. On its announcement in our state prisons, the resolu-
tion was very generally formed by the conviets to deserve and
obtain its full benefit. There is reason to believe, so at least
we have been assured, that at Sing Sing there were scarcely
ten prisoners whose minds were not made up to put forth
every effort to secure the desired result. But for those nine
weary months, this thing, so seeming fair, proved an utter
delusion. Man after man, whose conduct had been irreproach-
able, was seen discharged without any benefit from the law.
It was felt by the prisoners, and many of them loudly declared
that they were 'humbugged,'' tricked,' 'cheated' out of their
due and legal reward. That they were wronged out of it, un-
justly denied it, must be admitted even by those who are most
fastidious in their use of language. What was to have been
expected as the result? In the natural course of things, when
just and reasonable hopes were disappointed, when this law,
so big with promise, was seen to produce nothing, the pendu-
lum swung as far in the opposite direction as it had been
drawn in the other; and feelings of satisfaction and encour-
OF THE STATE OF NEW YORK.
379
agement gave way to the contrary sentiments of discontent
and despondency. Despair took the place of hope.
"But this was not the only revulsion reserved for these
unhappy men. The interpretation put upon the law by the
convicts was that which would occur to every man, on its
first perusal, viz., that by good behavior for six or more suc-
cessive months they might earn a commutation of three days
per month, and to that extent shorten the term of their im-
prisonment. When the law, within a year after its enactment,
was so amended as to make the maximum deduction from the
term of sentence two days instead of three, and especially
when the amended law was made practically retroactive in
its operation, and only two days were allowed for the period.
during which three, as they felt and believed, had been earned,
a general feeling of disappointment was produced, which gave
rise to a sort of chronic dissatisfaction-an impression that,
after all, the law was but little better than a delusion and a
mockery. In effect, it looked, to convict apprehension at
least, very much like trifling with expectations, which the
parties themselves had voluntarily raised. How fatal to the
normal operation of the law the reaction in such a case must,
have proved, any reflecting mind can judge. It would not be
strange if its effect was disastrous in precisely those cases in
which the healthful stimulus of the law was most needed.
To many of these men the law is now, perhaps, a dead letter;
to some it may possibly be worse, for human feelings are sub-
ject to reactions, and unjust disappointments often induce
recklessness, and sometimes even drive to desperation. But
by a just and generous conduct on the part of the authorities
in the future, and especially by a return to the old maximum-
perchance, even, if it should be judged expedient, by a still
broader application of the principle-these sores may be
healed, and the law may yet produce, without stint, all the
good fruits, which it is capable of yielding. But,
"Third. Despite the serious drawbacks enumerated above,
there is abundant evidence that the law has already borne
excellent fruit, and that its direct and active tendency is to
promote good order, quietness, industry and obedience to
prison rules on the part of convicts. To this effect is the con.
current testimony of all the reports made by the special com-
mittees appointed to 'visit, inspect and examine' the three
great penal institutions established and conducted by state
380
THE PENAL CODE
authority. The association unhesitatingly accepts this testi-
mony as decisive of the question—at least until the same is
disproved and rebutted by contrary testimony, resting on
results developed by future observation and experience. In-
deed, upon the evidence before us, we are prepared to second
a suggestion made by the committee who inspected Clinton
prison, to the effect that, if the time has not come yet, it soon
may, when the principle of the commutation law may be
judiciously extended.*
"A member of the abovenamed committee, and one of
our vice-presidents, the Hon. John Stanton Gould,-who
has since visited the state prison at Columbus, Ohio, in a
letter addressed to the corresponding secretary of the asso-
ciation, says: 'I have recently visited the Ohio state prison,
at Columbus, and find that the [commutation] law works, as
well there as it does in New York. It is thought that no
law ever passed by the legislature has been so marked in its
influence for good since Ohio has been a state. The excellent
working of the law, enabling prisoners to earn the remission
of part of their sentence by good conduct, should be com-
mented on [meaning in the annual report] in emphatic terms.'
"That provision of the present commutation law, which
exacts the forfeiture of all previously earned commutations
for fresh acts of misconduct, ought in the judgment of this
association, to be repealed. We consider it unwise to place
the time of a convict, once earned, at the mercy of any man.
* Since the date of this report, the executive of the state, in his annual
message to the legislature, has recommended the same thing. The passage
relating to this subject is appended, and is as follows:
"By recent acts of the legislature, convicts can, by good behavior, shorten
the terms of their imprisonment twenty-four days in each year. I advise an
extension of this system. It should be so graduated that it will give more
encouragement to convicts sentenced for long terms. Those who behave
well for many years give stronger evidences of reformation than can be
shown by those confined for shorter periods. An allowance for good con-
duct should be made of one month on each of the first two years; of two
months on each succeeding year to the fifth year; of three months on each
following year to the tenth year; and of four months on each remaining
year of the terms of their imprisonment. Under this system, a person
sentenced for five years can reduce his term to four years and four months;
those for ten years to eight years and one month; those for fifteen years to
eleven years and five months." [Note to Report of the Prison Association.]
This recommendation appears to have suggested the enactment of Laws of
1864, ch. 321; which the commissioners have embodied in section 1018 in
the text. [Note by the commissioners.]
1
OF THE STATE OF NEW YORK.
381
We would have each man feel that he is striving not for
chances but for certainties. If offenses are committed after
time is earned, let them be punished independently, each
according to its own desert, and not by forfeiture of time.
Let time once earned be held sacred. It will then seem to
the convict trebly worth striving for; while the loss of such
time, under a contrary rule, would be extremely dishearten-
ing, and the possibility of such loss must diminish propor-
tionately the effort to earn it.
"Any possibility of forfeiture, or provision to that effect
in the law, we consider highly objectionable, as tainting the
whole matter with uncertainty, which it should be a main
object, as far as possible, to avoid. Certainty, good faith,
a scrupulous respect for every hour of time earned, we regard
as of incalculable importance to the beneficial operation of
the law.
"And this should be placed, as far as practicable, beyond
contingency; more especially in view of the frequent changes
in the executive administration of our prisons, which must
ever occur under our existing prison system. The confidence
felt by convicts in one set of officers may not be extended to
their successors, and may not, in point of fact, be deserved
by them. We are, therefore, opposed to placing time earned
at the mercy of we know not who; and no one we think
will seriously advise it, who justly estimates what must be
its effect upon the operation of the law. We would have
legislation of this sort, whose whole design and operation is
to bestow grace upon the fallen, conducted, not in a reluctant
and grudging, but a free, generous, whole-souled spirit; that
is, in a manner worthy of a great and magnanimous state,
and calculated to inspire the respect and confidence, as well
as the gratitude, of those whom it is designed to affect."
The commissioners would add, that they fully appre-
ciate the importance of assuring to every convict who
complies with the provisions of the law, the full and
reliable right to the commutation earned. No fluctu-
ations in policy should frustrate the promise of the
statute. They have been held back from suggesting
an imperative provision of law, in the place of the section
in the text, only by the doubt whether such a provi-
sion would not be held to infringe the constitution, as
amounting to an attempt by the legislature to exercise
the pardoning power.
382
THE PENAL CODE
Application
of this
chapter.
Keepers
must re-
ceive per-
sons duly
committed.
CHAPTER XVII.
THE CUSTODY, CONDUCT, DISCIPLINE AND EMPLOY-
MENT OF PRISONERS IN COUNTY JAILS.
SECTION 1024. Application of this chapter.
1025. Keepers must receive persons duly committed.
1026. What prisoners must be kept separate.
1027. Male and female prisoners.
1028. Conversation to be prevented.
1029. Prisoners may converse with counsel, &c.
1030. Prisoners to be provided with food, clothing and bedding.
1031. To be employed at hard labor.
1032. Convicts may be employed on highways, streets, &c.
1033. When so employed to be chained.
1034. Keepers must provide a bible for each room.
1035. Keepers must keep daily record.
1036. Keepers must present a calendar to courts.
1037. Persons confined but not indicted, when to be discharged.
1038. Prisoners when not to be removed.
1039. Prisoners unable to pay fine, how discharged.
S 1024. The provisions of this chapter relate exclu-
sively to the county jails.
§ 1025. The keepers of the several county jails,
must receive and safely keep every person duly com-
mitted to their custody; and they must not, without
lawful authority, let out of jail, on bail or otherwise,
any such person.
Suggested as a substitute for Laws of 1847, ch. 460,
§ 3, which is as follows:
"The keepers of the several county prisons shall
receive and safely keep every person duly committed to
their custody for safe keeping, examination or trial, or
duly sentenced for imprisonment in such prison upen
conviction for any contempt or misconduct, or for any
criminal offense; and shall not, without lawful authority,
let out of prison, on bail or otherwise, any such person.
The commissioners do not intend any change in the law
by omitting the clause designating the classes of persons
who may be committed. That clause is stricken out as
superfluous; since it is the duty of the prison keeper to
detain all persons duly committed.
For the reason for substituting the phrase "county
jail," for "county prisons," see note to section 809.
+
OF THE STATE OF NEW YORK.
383*
soners must
be kept
S 1026. All prisoners committed on criminal process What pri-
and detained for trial, or committed for contempts or
upon civil process, and all persons detained as wit-
nesses, must at all times be kept in rooms separate
and distinct from those in which convicts are confined.
Suggested as a substitute for Laws of 1847, ch. 460,
§ 4: which contains no provision to protect persons
detained as witnesses from being confined with convicts.
It is as follows:
"Prisoners committed on criminal process, and detained
for trial, and persons committed for contempts, or upon
civil process, shall be kept in rooms separate and dis-
tinct from those in which persons convicted and under
sentence shall be confined; and on no pretense whatever
shall prisoners be detained for trial, or persons committed
for contempt, or upon civil process, be kept or put in the
same room with convicts under sentence."
S 1027. Male and female prisoners (except husband
and wife) must not be kept or put in the same room.
Laws of 1847, ch. 460, § 5.
separate.
Male and
soners.
female pri-
Conversa-
tion to be
$ 1028. It is the duty of the keepers of the several
county jails to keep the prisoners committed to their prevented.
charge, so far as practicable, separate and distinct
from each other, and to prevent all conversation
between such prisoners.
Laws of 1847, ch. 460, § 6.
may con-
counsel, &c.
S 1029. Prisoners detained for trial may converse Prisoners
with their counsel, and with such other persons as verse with
the keeper, in his discretion, may allow; prisoners
under sentence must not be permitted to hold any
conversation with any person, except the keeper or
the inspectors of state prisons, unless in the presence
of a keeper or inspector.
See Laws of 1847, ch. 460, § 7.
S 1030. All persons confined in county jails are
entitled to be provided at the expense of the county,
with a sufficient quantity of inferior but wholesome
food, and with inferior but comfortable clothing and
Prisoners
to be pro
vided with
food, cloth-
ing and bed-
ding.
384-
THE PENAL CODE
To be em-
ployed at
bedding; and persons detained as witnesses and pri-
soners detained for trial, or held upon civil process or
for contempts, may, at their own expense, and under
the direction of the keeper, be supplied with any
other proper article of food.
Suggested as a substitute for Laws of 1847, ch. 460,
§ 8; which omits to recognise the right of persons held
under civil process, or as witnesses, to be fed at the
expense of the county. The section is as follows:
"Prisoners detained for trial and those under sentence,
shall be provided with a sufficient quantity of inferior
but wholesome food, at the expense of the county; but
prisoners detained for trial, may, at their own expense,
and under the direction of the keeper, be supplied with
any other proper article of food."
The right to be supplied with suitable clothing and
bedding, seems also proper to be recognized in connection
with the right to be fed.
S 1031. It is the duty of the keeper of each county
hard labor. jail to cause each prisoner under sentence, except
such as are under sentence of death, to be constantly
employed at hard labor, when practicable, during
every day except Sunday, and it is the duty of the
inspectors, or if they fail to act, of the keeper of
the prison, to prescribe the kind of labor at which the
prisoners shall be employed. The keeper must account
at least annually, with the board of supervisors of the
county for the proceeds of such labor.
Convicts
may be em-
ployed on
highways,
streets, &c.
See Laws of 1847, ch 460, § 9.
S 1032. The keeper of each county jail may, with
the consent of the supervisors of the county, from time
to time cause such of the convicts under his charge
as are capable of hard labor, to be employed upon
any of the public avenues, highways, streets, or other
works, in the county in which such prisoners shall be
confined, or in any of the adjoining counties, upon
such terms as may be agreed upon between such
keeper and the officers or other persons under whose
direction such convicts are employed.
Laws of 1847, ch. 460, § 10.
1
OF THE STATE OF NEW YORK.
385
employed
ed.
$1033. Whenever any convicts are employed under When so
the last section, they must. be well chained and to be chain-
secured; and shall be subject to such regulations as
the keeper legally charged with their custody shall,
from time to time, prescribe.
Laws of 1847, ch. 460, § 11.
1
Section 12 of the act of 1847-which declares that:
"The provisions contained in the twenty-fourth, twenty-
fifth, twenty-sixth and twenty-seventh sections in the
second article of the sixth title of the seventh chapter
of the third part of the Revised Statutes, shall extend
to prisoners confined upon any criminal process, or for
a contempt, or under sentence, in like manner as for
prisoners confined in civil cases "is omitted here.
These sections relate to the removal of the prisoners in
county jails, in certain specified cases, and are substan-
tially embraced by sections 810, 811, 812 and 814 of this
Code. The provision of Laws of 1847, ch. 280, § 29,
modifying section 26 of 2 Rev. Stat., 430, above men-
tioned, is also presented in section 812.
S 1034. It is the duty of the keeper of each county
jail to provide a bible for each room in the prison, to
be kept therein; and he shall, if practicable, cause
divine service to be performed for the benefit of the
prisoners, at least once each Sunday, provided there
is a room in the prison that can be safely used for
that purpose.
Laws of 1847, ch. 460, § 13.
Section 14 of the act of 1847-which provides that:
"The provisions in relation to insane persons contained
in the thirty-second section of the act entitled 'an act
to organize the state lunatic asylum and more effectually to
provide for the care, maintenance and recovery of the
insane,' passed April 7th, 1842, shall be construed to
apply to all prisoners in a county jail other than those
who are committed for contempt or on civil process
is omitted here. Provisions for the care of insane con-
victs are presented in chapter XIX of this title.
S 1035. The keeper of each county jail must keep
a daily record, in a book which must be furnished by
the county and remain in the jail as county property,
of the commitments and discharges of all prisoners
delivered to his charge; which must contain the infor-
Keepers
vide a bible
must pro-
for each
room.
Keepers
daily rec
must keep
ord.
!
49
386
THE PENAL CODE
COUNTY JAIL.
Cannot read.
Date of entrance.
Name.
Offense.
Term of
sentence.
Fine.
Age. Sex. Country.
Color.
Social
relations.
Parents.
Habits of
life.
cated.
only. Read
Read
and
write. Well edu.
educated.
Classically
186
186
RECORD OF COMMITMENTS AND DISCHARGES.
Religious
instruction.
How
committed.
By whom
committed.
State of health
when committed.
Ποπ
discharged.
Date of discharge.
Trade or
occupation.
Whether go em-
ployed when
arrested.
Number of
previous
convictions.
table; and may be kept substantially in that form :
mation indicated in the headings to the following
Value of articles
stolen.
OF THE STATE OF NEW, YORK.
387
The section and form of table given in the text are a
substitute for Laws of 1847, ch. 460, § 15, as follows:
"It is the duty of the keeper of each county prison to
keep a daily record of the commitments and discharges
of all prisoners delivered to his charge, which record
shall exhibit the date of entrance, name, offense, term of
sentence, fine, age, sex, county, color, social relations.
parents, habits of life, cannot read, read only, read and
write, well educated, classically educated, religious in-
struction, how committed, by whom committed, state of
health when committed, how discharged, trade or occu-
pation, whether so employed when arrested, value of
articles stolen."
S 1036. It is the duty of. the keeper of every county
jail to present to every court of oyer and terminer,
and to every court of sessions held in his county, at
the opening of such court, a calendar, stating:
1. The name of every prisoner then detained in
such jail;
2. The time when such prisoner was committed,
and by virtue of what process or precept; and,
3. The cause of the detention of every such pri-
soner.
See Laws of 1847, ch. 460, § 25.
70
S 1037. It is the duty of each court, within twenty-
four hours after the discharge of any grand jury by
any court of oyer and terminer or court of sessions,
to cause every person so confined in such prison upon
any criminal charge, who shall not have been indicted,
to be discharged without bail, unless satisfactory
cause is shown to such court for detaining such per-
son in custody, or upon bail, as the case may require,
until the meeting of the next grand jury in such
county.
Laws of 1847, ch. 460, § 26.
S 1038. After the court of oyer and terminer has
commenced its sittings in any county, no prisoner
detained in the common jail of any such county,
upon any criminal charge, can be removed therefrom
by any writ of habeas corpus, except one issued by
Keepers
sent a calen-
courts.
must pre-
dar to
Persons
but not in-
discharged.
confined
dicted,
when to be
Prisoners.
when not
to be re-
moved.
888
THE PENAL CODE
1
Prisoners
unable to
pay fine,
how dis-
charged.
such court of oyer and terminer, or made returnable
before it.
See Laws of 1847, ch. 460, § 27. The words "deli-
verance from imprisonment" should be substituted for
"habeas corpus" if the provisions of the Rep. Code of
Civil Pro. relative to that writ, are enacted.
S 1039. Upon satisfactory proof being made to the
county court of any county that any person confined
in the county jail of such county for non-payment of
a fine not exceeding two hundred and fifty dollars,
imposed for any crime, and against whom no other
cause of detention exists, is, and ever since his con-
viction has been unable to pay such fine, such court
may, in its discretion, order the discharge of such
person.
Recommended as a substitute for Laws of 1847, ch.
460, § 28, which is as follows:
"When any person shall be confined in any county
prison for the non-payment of any fine not exceeding
two hundred and fifty dollars, imposed for any criminal
offense, and against whom no other cause of detention
exists, on satisfactory proof being made to the county
court of the county in which such prisoner may be con-
fined, that he is unable, and has been ever since his
conviction unable to pay such fine, the court may, in its
discretion, order his discharge,"
CHAPTER XVIII.
INSPECTION OF COUNTY JAILS.
SECTION 1040. Inspectors of state prisons to inspect county jails.
1041. Counties to be divided among the inspectors.
1042. Plan to be submitted to governor, comptroller and attorney-
general.
1043. Sheriffs and keepers must admit inspectors into every
part, &c.
1044. Inspector must make report of his examination.
1045. Must report defects in the jail.
1046. Alterations in plans of county jails, how to be made.
1047. Annual report to be made to the legislature.
OF THE STATE OF NEW YORK.
389
of state
inspect
S1040. It is the duty of the inspectors of state Inspectors
prisons to visit and inspect, separately or collectively, prisons to
at least once in each year, all the county jails in this county
state.
Section 17 of the act of 1847 (ch. 460), provided that
it should be the duty of the inspectors to inspect “all the
jails or other county prisons, penitentiaries and houses of
detention in this state." By Laws of 1849, ch, 331, § 1,
so much of the act of 1847 as required the inspectors of
state prisons to visit and examine county jails, was re-
pealed. This left the provisions relative to inspection of
other inferior prisons, in force. No new provision for
the official inspection of county jails was substituted by the
repealing act; though the charter of the Prison Associa-
tion of New York makes it the duty of the Association
to visit, inspect and examine all the prisons in the state,
and annually to report their state and condition and all
such other things in regard to them, as may enable the
Legislature to perfect their government and discipline.
In the performance of this duty, the Association has
organized a system of visitation of the county jails which
nearly, though not quite, secures the visit of a committee
of the Association to each county jail, once in each year.
The commissioners have, however, restated in the text
the provisions of the act of 1847, requiring an inspection
of county jails by the inspectors of state prisons, notwith-
standing its repeal in 1849. This is done for the purpose
of calling the attention of the Legislature to the question
whether some system of inspection of county jails by
public officers of the state, is not desirable, in addition to
that conducted by the Prison Association. The salaries
of inspectors should doubtless be increased if this duty
is reimposed upon them. The commissioners also suggest
the question whether two annual visits are not desira-
ble, one in summer and one in winter; as a management
suitable for one season might be improper at another;
and whether there should not be an official inspection of
poor houses and insane, inebriate and idiot asylums,
whether public or private.
S 1041. For the purpose of carrying into effect the
provisions of the last section, the inspectors must, as
soon as practicable, after entering upon their official
duties, designate and set apart to each of their num-
ber the counties to be so visited by them, respectively,
during the current year, for the purpose of such in-
spection; and at the same time adopt such plan and
jails.
Counties to
among the
inspectors.
be divided
390
THE PENAL CODE
Plan to be
submitted
regulations, not inconsistent with the laws of this
state, as they deem expedient and necessary to carry
into effect a uniform system for the government and
regulation of all the county jails of this state, and the
modification and improvement of the structure of such
jails, with a view to such uniformity.
Laws of 1847, ch. 460, § 18.
S 1042. Such plan and regulatious, when agreed
upon and adopted by the inspectors, shall be by them
troller and immediately submitted to the governor, comptroller
to gover-
nor, comp-
attorney-
general.
Sheriff and
keepers to
admit in-
spectors
into every
part, &c.
Inspector
must make
report of
and attorney-general for their approval, but shall sub-
sequently be subject to such modifications as the
inspectors may deem expedient and proper. A copy
of such plan and any modifications shall be furnished
to the county judge and sheriff of each county,
and to the keepers of each of the county jails of this
state, whose duty it shall be to observe and carry the
same into effect.
Laws of 1847, ch. 460, § 19.
S1043. It is the duty of the sheriff and keeper of
each of the jails to admit the inspectors, or any one
of them, into every part of such jail; to exhibit to
them, on demand, all the books, papers, documents
and accounts pertaining to such jail, or to the deten-
tion of persons confined therein; and to render them
every other facility in their power to enable them to
discharge the duties above prescribed, and to enable
them to obtain any necessary information. And the
inspectors are empowered to examine on oath, to be
administered by any one of them, any of the keepers
or officers of such jail, and any person not under sen-
tence confined therein, and to converse with any of
the prisoners so confined, without the presence of the
keeper thereof, or any of them.
Laws of 1847, ch. 460, § 20.
S1044. Such inspector or inspectors, after a careful
and thorough examination and inspection of each jail
1
OF THE STATE OF NEW YORK.
391
nation.
or other prison, must immediately make a detailed his exami
report of the same, stating the condition of the same
at the time of such inspection, the number of persons
confined therein for the year ending at the date of
such report, the causes of such confinement, the man-
ner in which convicts confined in such jail or prison
during that period have been employed, the number
of persons usually coufined together in one room, the
distinction, if any, usually observed in the treatment
of persons therein confined, the evils and abuses, if
any, found to exist, and particularly whether any of
the rules and regulations prescribed by the inspectors
or any of the provisions of this title have been violated,
so far as the information required in this section can be
obtained from the records of said jail or prison or·
otherwise.
Laws of 1847, ch. 460, § 21.
defects in
the jail.
S1045. Such inspector or inspectors must note Must report
and include in such report, or append thereto, any
defect or defects he or they may deem to exist in
the structure and arrangements of such jail, and
suggest such improvements in the same as he may
deem to be necessary to carry into successful opera-
tion and to ensure uniformity in the system by them
adopted; and he or they shall then immediately leave
with the county judge of such county a duplicate copy
of such report and suggestion. Such judge must file
the same with the clerk of the county, and cause a
copy thereof, together with, if he approves the same, or
any part thereof, such approval indorsed thereon, to
be delivered to the clerk of the board of supervisors
of the county.
See Laws of 1847, ch. 460, § 22.
S 1046. The clerk of the board of supervisors must
present such report and suggestions (with any ap-
proval indorsed thereon by the county judge) to the
board of supervisors at their next meeting, who
are authorized and required to cause such alterations
Alterations
county
in plans of
jails, how
to be made.
392
THE PENAL CODE
Annual re-
port to be
gislature.
to be made in the plan and construction of the jail of
such county, and such additional rooms to be con-
structed as shall have been so suggested and approved
by the county judge, and as shall be necessary to
remedy such deficiencies, and to levy, and cause the
expenses so to be incurred to be assessed upon the
county as other county expenses are levied and
assessed. And in all cases where there exists any de-
ficiency in room or arrangement of apartments in any
county jail which prevents such classification of pri-
soners as is prescribed in section 809, it is the duty of
the supervisors to cause such deficiency to be supplied
without unnecessary delay.
Laws of 1847, ch. 460, § 23, as amended, Laws of
1849, ch. 331, § 2.
S 1047. The inspectors must annually, on or before
made to le the fifteenth day of January in each year, make an
abstract report of their inspections of such county jails
and prisons, to the legislature, in which report shall
be included, in tabular form, a summary of the record
required by section 1035 to be kept by the keepers
of such county jails.
Laws of 1847, ch. 460, § 24.
CHAPTER XIX.
CUSTODY OF INSANE PRISONERS.
SECTION 1048. Inspectors may order removal of insane convicts from
state prisons.
1049. Superintendent of asylum must receive them.
1050. When insane convict may be removed to the county of
his residence.
1051. Poor officers must receive such convict.
1052. When insane convict may be delivered to relatives.
1053. Convicts not to be retained in asylum after expiration of
sentence.
1054. Except upon examination and order by county judge.
1055. Convicts, when restored to reason, to be transferred to
Auburn prison.
1056. Transfer of certificate.
1057. Pay of physicians.
1058. Inquiry into insanity of prisoners in county jails.
OF THE STATE OF NEW YORK.
.393
may order
removal of
insane con-
victs from
state
prisons.
S 1048. Whenever the physician of either state Inspectors
prison has certified to the board of inspectors or to
the inspector in charge of such prison that any con-
vict confined therein is insane, it is the duty of such
board or inspector in charge, to make, immediately,
a full examination into the condition of such convict,
and if satisfied that he is insane, such board, or
inspector in charge, may order the warden of such
prison, forthwith to convey such convict to the state
lunatic asylum for insane convicts, and to deliver
him to the superintendent thereof.
Taken from Laws of 1858, ch. 130, § 8, as amended
Laws of 1863, ch. 139, § 1.
The provisions of this chapter, except the last section,
are all taken from this act, which is entitled "An act to
organize the State Lunatic Asylum for Insane Convicts."
The act provides for the custody of all persons, who, hav-
ing been sent to state prison under sentence, are there
discovered to be insane. Two other classes exist. First.
Persons put upon trial for crime, but acquitted on the
ground of insanity. Provision is made for these by sec-
tion 19 of this Code. Second. Persons who are found
insane while under confinement in a county jail. These
cases are embraced by section 1058. And an additional
provision is made in favor of persons who were insane
when their offense was committed, but whose insanity
was not discovered at their trial, by section 892.
In so far as the act of 1858 provides for the organiza-
tion and management of the state lunatic asylum for
insane convicts, considered as an independent institution
(though situated upon the Auburn prison grounds), it is
left unaffected by this Code.
The following provisions of former laws, upon the sub-
ject of the disposition to be made of insane convicts, are
considered to be superseded by the act of 1858, as
amended.
"Section ninety-six of the act for the better regulation
of the county and state prisons of the state, and consoli-
dating and amending the existing laws in relation thereto,
passed December fourteenth, eighteen hundred and forty-
seven, is hereby amended so as to read as follows: The
inspectors of the prisons of this state are hereby author-
ized and required, without delay, to make the necessary
and suitable provisions in one of the state prisons of this
state, and the removal to such place for safe keeping and
proper care, all the insane convicts now in the state lunatic
50
394
THE PENAL CODE
asylum at Utica, and whenever the physician of a state
prison shall duly report to the warden of such prison that
any convict confined therein, is so far insane as to render
him dangerous, or an improper subject of prison discipline,
it shall be the duty of said warden to remove such con-
vict to the place so provided, and the officers having
charge of such place shall receive such convict and retain
him there, at the expense of the state, so long as he or
she shall continue insane."
Laws of 1855, ch. 456, § 1.
"The words 'lunatic asylum,' 'state lunatic asylum,' or
'asylum at Utica,' whenever the same occur in the act
hereby amended, shall be construed to apply to the place
for safe keeping and proper care of insane convicts, pro-
vided for in the first section of this act."
Ibid., § 2.
"If such insane person shall recover from his insanity
before the expiration of the term for which he was sen-
tenced, the officer having the principal charge of the
asylum shall give notice of such recovery to the agent of
the prison from which such convict was sent, as soon as
in his judgment such convict may be safely removed; and
it shall then be the duty of the agent to cause the convict
to be returned to such prison."
Laws of 1847, ch. 460, § 97.
"The ninety-ninth section of the aforesaid act-Laws
of 1847, ch. 460-is hereby repealed, and the following
substituted therefor:
§ 99. When any convict sent to the state lunatic
asylum under and by virtue of the provisions of this act,
shall have remained in the asylum until the term of his
sentence has expired, the managers of said asylum may
cause such insane convict to be removed at the expense
of the state from the asylum to the county of which he is
a resident, to be placed under the care and charge of the
superintendents of the poor of such county, in case the
superintendent of the asylum shall certify that such insane
convict will not be benefited by longer remaining in the
asylum, and that he can probably be made comfortable in
the county poor house. The managers of said asylum
shall be authorized to give, at the expense of the state, to
any patient sent to the asylum under the provisions of
this act, and who shall, after the expiration of the term
of his sentence, be discharged from the asylum recovered,
such sum, not exceeding ten dollars, as will defray his
necessary traveling expenses from the asylum to the
county in which he last resided.'
Laws of 1848, ch. 294, § 2.
"So much of chapter four hundred and fifty-six, of the
Laws of eighteen hundred and fifty-five, entitled 'An act
OF THE STATE OF NEW YORK.
395
to provide for insane criminals,' as requires that female
insane convicts shall be removed from the state lunatic
asylums, to the place provided for in said act, is hereby
repealed, and the female insane convicts shall continue
to be sent to the state lunatic asylums as heretofore.'
Laws of 1857, ch. 144, § 3.
"The preceding six sections shall all be construed to
apply to the convicts in the female convict prison at Sing
Sing." Laws of 1847, ch. 460, § 100.
"The expense of removing insane convicts to the luna-
tic asylum, and returning them to the prison from which
they were sent, shall be paid by the agent of said prison,
out of any funds belonging to the prison, in his hands."
Ibid., § 101.
S1049. The superintendent of the asylum must
receive such convict into the asylum, and retain him
there until he is legally discharged.
Taken from Laws of 1858, ch. 130, § 8, as amend-
ed Laws of 1863, ch. 139, § 1.
S 1050. Whenever any convict placed in the state
lunatic asylum for insane convicts, under the provi-
sions of this chapter, shall continue to be insane at
the expiration of the term for which he was sentenced,
the board of inspectors, upon the superintendent's
certificate that he is harmless and will probably con-
tinue so, and that he is not likely to be improved by
further treatment in the asylum, or upon a like certifi-
cate that he is manifestly incurable and can probably
be rendered comfortable at the county alms house,
may cause such insane convict to be removed at the
expense of the state, from the asylum to the county
wherein he was convicted, or to the county of his for-
mer residence, and delivered to and placed under the
care of the persons charged with the support of the
poor of such county.
Taken from Laws of 1858, ch. 130, § 9, as amend-
ed Laws of 1863, ch. 139, § 2.
S 1051. The persons charged with the support of
the poor of such county, must receive such insane
convict under their charge.
Superinten-
lum must
dent of asy-
receive
them.
when in-
vict may be
the county
sane con-
removed to
of his resi-
dence.
Poor offi-
receive such
cers must
convict.
Taken from Ibid.
396
THE PENAL CODE
When
insane con-
vict may
be
S 1052. The board of inspectors may also deliver
viivered any convict whose sentence has expired, and who is
to relatives. still insane, to his relatives or friends, who will under-
take, with good sureties to be approved by the super-
intendent of the state lunatic asylum for insane con-
victs, for his peaceful behavior, safe custody and com-
fortable maintenance without further public charge.
Convicts
not to be
asylum
Taken from Ibid.
$ 1053. No convict shall be retained in the asylum
retained in after the expiration of his sentence to the state prison,
unless by the order of the county judge of the county
in which the asylum is situated.
after expi-
ration of
sentence.
Except
upon ex-
amination
and order
by county
judge.
Convicts
when
Taken from Ibid.
S 1054. In case any convict cannot be removed
from the asylum upon the expiration of his term of
sentence under the preceding sections, it is the duty
of the county judge, upon the application of the said
superintendent, to proceed to investigate the question
of the insanity of such convict, and cause two
respectable physicians to be designated by him to
examine the convict; and upon their evidence under
oath, and upon such other testimony as he shall
require, he shall decide the case as to his insanity,
and if he is satisfied that such convict is insane,
he shall make an order that such convict shall be
retained in the asylum until he is recovered of his
insanity, or is otherwise discharged according to law.
The fees of such physicians and witnesses shall be
audited by the state prison inspector in charge, and
shall be a charge against the state, to be paid by
the comptroller out of the general fund; but such
fees shall not in any one case exceed the sum of ten
dollars.
Taken from Ibid.
$1055. Whenever any convict placed in the asylum
restored to under the provisions of this chapter, has become re-
stored to reason, and the medical superintendent of
the asylum shall so certify in writing, such convict
reason must
be trans-
ferred to
Auburn
prison.
OF THE STATE OF NEW YORK.
397
shall be forthwith transferred to the Auburn state
prison; and the warden of that prison must receive
such convict into the prison, and must in all respects
treat such convict as if he had been originally sen-
tenced to imprisonment in that prison, though he
may have been conveyed to the asylum from either
of the other prisons.
Founded on Laws of 1858, ch. 130, § 10.
certificate.
S 1056. Whenever the board of inspectors or an Transfer of
inspector shall order any convict to be transferred to
the asylum, the warden of the prison from which
such convict is transferred, must cause a correct
copy of the original certificate of conviction of such
convict to be filed in his office, and deliver the
original certificate to the superintendent of the asy-
lum; and when any such convict shall be transferred
to the Auburn prison from such asylum, as herein-
before provided, the superintendent must deliver to
the warden of that prison such original certificate,
which shall be filed in the clerk's office in that prison.
Founded on Ibid., § 11.
sicians.
S 1057. Every physician who attends any meeting Pay of phy-
of the board of inspectors, or who makes any exami-
nation of any convict, as provided by this chapter,
shall be paid his actual and reasonable traveling
expenses in going to and returning from such meet-
ing or examination, on the certificate of the president
of the board of inspectors, that he has attended such
meeting or examination.
Founded on Ibid., § 12.
S 1058. Whenever any prisoner confined in a county
jail, other than such as are committed for contempt
or upon civil process, appears to be insane, the
county judge of the county shall institute a careful
investigation, shall call two respectable physicians
and other credible witnesses, and invite the district
Inquiry in-
to insanity
of prisoners
in county
jails.
398
THE PENAL CODE
attorney to aid in the examination; and may, if he
deem it necessary, call a jury; and for the purposes
of such examination such judge is fully empowered
to compel the attendance of witnesses and jurors.
If it be satisfactorily proved that such prisoner is
insane, such judge may discharge him from impris-
onment and order him to be removed to the state
lunatic asylum, to remain until restored to his right
mind; and then, if such judge shall have so directed,
the superintendent shall give notice of such restora-
tion to such judge, and the county clerk and district
attorney of the county, so that such prisoner may,
within sixty days thereafter, be remanded to prison,
and criminal proceedings be resumed, or otherwise
discharged; or if the period of his imprisonment has
expired, he shall be discharged. The expense of the
removal and support of any prisoner, under this
section, shall be defrayed by the county in which the
jail from which he is removed is situated.
See Laws of 1842, ch. 135, § 32; and Laws of
1847, ch. 460, § 14.
CHAPTER XX.
GENERAL PROVISIONS APPLICABLE EQUALLY TO
STATE PRISONS AND COUNTY JAILS.
SECTION 1059. Exemption of officers, &c., from jury and militia duty.
1060. What punishments are allowed.
1061. Spirituous and fermented liquors not to be sold or brought
into prisons.
1062. When permits may be granted.
1063. Persons authorized to visit county and state prisons.
1064. Convicts may be called as witnesses in certain trials.
1065. And may testify.
1066. Prisoners may be brought before courts as witnesses.
1067. And may testify.
1068. Prisoners indicted may be brought before court for trial.
1069. In cases of indictment for felony.
1070. Repeal of former laws.
1071. Time when Code takes effect.
OF THE STATE OF NEW YORK.
399
•
of officers,
S1059. The officers and persons employed in every Exemption
county jail or state prison shall be exempted during &c. from
their continuance in office, from serving on juries and
from militia duty.
Laws of 1847, ch. 460, § 148. The exemptions from
military duty granted in this and several other sections
of the prisou laws already cited, are retained in this Code,
notwithstanding they are not recognized in the act for
the enrollment of the militia (Laws of 1862, ch. 477, as
amended Laws of 1863, ch. 425), as it is thought probable
the omission of them in the militia law may have been
inadvertent.
$ 1060. No person confined in any prison can be
punished by whipping. The following punishments
and no others may be inflicted upon convicts for incor-
rigible disobedience to the rules of the prison or jail,
or for wanton destruction of or injury to clothing,
bedding or other property within the jail :
1. Confinement by chains or shackles ;
2. Privation of food or bedding;
3. Confinement in solitary cells;
4. In a state prison, showering; but only in the
presence and under the direction of the physician of
the prison.
As to the first clause, see Laws of 1847, ch. 460, § 149.
The word "person" is substituted for "female."
militia
and jury
What pun-
are allowed.
ishments
and fermen-
ted liquors
sold or
not to be
brought in-
to prison.
S1061. No spirituous or fermented liquors shall, on Spirituous
any pretense whatever, be sold within any county
jail or state prison, nor shall any kind of spirituous
or fermented liquor be brought into any county jail
for the use of any convict confined therein, without a
written permit, signed by the physician to such prison,
specifiying the quantity and quality of the liquor which
may be furnished to any convict, the name of the pri-
soner for whom, and the time when the same may be
furnished, which permit shall be delivered to and kept
by the keeper of the prison. But this section shall
not prevent the purchase of supplies of such liquor
for the ordinary hospital supply of the state prisons.
See Laws of 1847, ch. 460, § 152.
400
THE PENAL CODE
When per-
mits may
§ 1062. No permit shall be granted unless it shall
be granted. satisfactorily appear to such physician that the liquor
allowed to be furnished is necessary for the health of
the prisoner for whose use it is permitted, which shall
be stated in such permit.
Persons an-
thorized to
and
prisons.
Laws of 1847, ch. 460, § 153. Section 154 of that act
is omitted for the reason that its provisions are substan-
tially embraced in section 208 of this Code, except that
portion which imposes a forfeiture of office. That sub-
ject may well be left to the operation of the power of
removal of the various officers, for official misconduct.
S1063. The following persons are authorized to
visit county visit at pleasure all county jails and state prisons:
the governor and all persons authorized by him in
writing, the lieutenant-governor, secretary of state,
comptroller and attorney-general, members of the
legislature, judges of the court of appeals, supreme
court and county judges, district attorneys, the offi-
cers and committees of the New York prison asso-
ciation, and every minister of the gospel having
charge of a congregation in the town wherein any
such prison is situated. No other person not other-
wise authorized by law shall be permitted to enter
the rooms of a county jail in which convicts are
confined, unless under such regulations as the sheriff
of the county shall prescribe, nor to enter a state pri-
son except under such regulations as the inspectors
shall prescribe. But no fees shall be charged for any
admission.
Convicts
may be
called as
witnesses
in certain
trials.
See Laws of 1847, ch. 460, § 159.
S 1064. Whenever any convict confined in any
county jail or state prison shall be considered an
important witness in behalf of the people of this
state, upon any criminal prosecution against any
other convict, by the district attorney conducting the
same, it shall be the duty of any officer authorized
by law to allow writs of habeas corpus, upon the affi-
davit of such district attorney, to graut a habeas
1
OF THE STATE OF NEW ‘YORK.
401
corpus for the purpose of bringing such prisoner
before the proper court to testify upon such prosecu-
tion.
Laws of 1847, ch. 460, § 150. The words "writ of
deliverance from imprisonment " should probably be sub-
stituted for "habeas corpus" in this and following sec-
tions, if the provisions of the Code of Civil Procedure
are to be enacted; though the name, writ of deliverance
from imprisonment, seems inappropriate where the pro-
ceeding has no purpose to review the imprisonment from
which the person brought up is taken.
testify.
S 1065. Such convict may be examined on such And may
trial, and shall be considered a competent witness
against any fellow prisoner, for any offense actually
committed whilst in prison, and whilst the witness so
offered shall have been confined in the prison in which
such offense shall have been committed.
Laws of 1847, ch. 460, § 151.
S 1066. Whenever it shall appear to the court in
which an indictment is pending and to be tried
against any person for any offense committed by
him while imprisoned in any county jail, or any one
of the state prisons, on the person of any other indi-
vidual confined in such jail or state prison, that any
other person confined in any county jail, or in any of
the state prisons, is an important witness in behalf
of the person so indicted, such court is hereby author-
ized to grant a writ of habeas corpus for the purpose
of bringing such prisoner before such court to testify,
upon the trial of such indictment, in behalf of the
party making the application.
Laws of 1847, ch. 460,. § 155.
Prisoners
brought be
may be
fore courts
as wit-
nesses.
testify.
S1067. Every person, when brought up on such And may
writ, may be examined as a witness on such trial,
and shall be competent to testify thereon in behalf
of the defendant or the people, notwithstanding his
conviction and imprisonment.
51
402
THE PENAL CODE
Prisoners
indicted
may be
Laws of 1847, ch. 460, § 156. The amendment desig-
nated to this section by Laws of 1860, ch. 399, § 14, is
obviously intended for section 146, instead of 156; and
is therefore disregarded here. See note to section 818.
S1068. The court in which any indictment is pend-
brought be- ing against any person imprisoned on conviction of a
fore court
for trial.
In cases of
indictment
crime in any county jail or state prison, for an offense
committed during such imprisonment, is hereby
authorized to issue a writ of habeas corpus for the
purpose of bringing the individual so indicted before
the court, for arraignment or trial on such indictment.
Laws of 1847, ch. 460, § 170.
S1069. The court in which any indictment is pend-
for felony. ing for a felony, against any person imprisoned on
conviction of a crime in any county jail or state prison,
is hereby authorized to issue a writ of habeas corpus
for the purpose of bringing the individual so indicted
before such court for arraignment or trial on such
indictment.
Repeal of
former
laws.
Laws of 1847, ch. 460, § 158.
$ 1070. From the time at which this Code shall
take effect as a law, the following acts, except as to
such provisions therein as are temporary in their
nature, and have not been wholly executed, are
repealed, in so far as they apply to state prisons and
county jails, and no farther. But such repeal shall
not revive any act or part of any act repealed by
either of such laws.
1. An act for the better regulation of the county
and state prisons of the state, and consolidating
and amending the existing laws in relation thereto.
Passed December 14, 1847.
Laws of 1847, ch. 460.
2. An act in relation to the transportation of con-
victs to the state prisons and houses of refuge.
Passed December 15, 1847.
Laws of 1847, ch. 497.
1
OF THE STATE OF NEW YORK.
403
3. An act to amend the act for the better regula-
tion of the county and state prisons of this state.
Passed April 12, 1848.
Laws of 1848, ch. 294.
4. An act fixing the fees of sheriffs for transporting
convicts to the state prisons. Passed March 22, 1849.
Laws of 1849, ch. 123.
5. An act in relation to the removal of convicts
from one state prison to another. Passed March 26,
1849.
Laws of 1849, ch. 132.
6. An act authorizing the inspectors of state prisons
to administer oaths and take affidavits in certain
cases. Passed March 26, 1849.
Laws of 1849, ch. 133.
7. An act in relation to Sing Sing prison. Passed
March 27, 1849.
Laws of 1849, ch. 141.
8. An act to amend "an act for the better regula-
tion of the county and state prisons of the state, and
consolidating and amending the existing laws in rela-
tion thereto." Passed April 14, 1849.
Laws of 1849, ch. 331.
9. Section two of an act in relation to juvenile
delinquents. Passed February 26, 1850.
Laws of 1850, ch. 24.
10. An act to amend the Revised Statutes in relation
to agents of state prisons. Passed March 13, 1854.
Laws of 1854, ch. 58.
11. An act to amend several acts in relation to state
prisons, and making appropriations for the Clinton,
Auburn and Sing Sing prisons. Passed April 15,
1854.
Laws of 1854, ch. 240.
404
THE PENAL CODE
·
12. An act to authorize the agent and warden of
Sing Sing prison to let by contract the labor and ser-
vices of convicts in that prison, to the business of
quarrying, splitting, sawing and removing stone, for
a term of years. Passed April 12, 1855.
Laws of 1855, ch. 334.
13. An act to provide for insane criminals. Passed
April 13, 1855.
Laws of 1855, ch. 456.
14. An act to amend the several acts in relation to
state prisons. Passed April 19, 1855.
Laws of 1855, ch. 552.
15. An act to amend the several acts in relation to
state prisons. Passed March 10, 1857.
Lays of 1857, ch. 94.
16. An act appropriating money for making pro-
visions for insane convicts. Passed March 20, 1857.
Laws of 1857, ch. 144.
17. Sections ten, eleven and twelve of an act to
organize the state lunatic asylum for insane convicts.
Passed April 8, 1858.
Laws of 1858, ch. 130.
18. An act authorizing the reports of the male and
female departments of state prisons to be made sepa-
rately. Passed April 12, 1860.
Laws of 1860, ch. 283.
19. An act to amend the several acts in relation to
state prisons. Passed April 14, 1860.
Laws of 1860, ch. 399.
20. An act to increase the compensation of assis-
tant matrons of the Sing Sing female prison. Passed
April 16, 1860.
Laws of 1860, ch. 458.
OF THE STATE OF NEW YORK.
405
21. An act to increase the duties and compensation
of the physicians respectively at the Auburn, Sing
Sing and Clinton prisons. Passed April 21, 1862..
Laws of 1862, ch. 403.
22. An act to alter the term for which criminals
may be sentenced to state prison, and to provide for
their earning a commutation of sentence and an
increase of the amount to be paid them on their dis-
charge. Passed April 22, 1862.
Laws of 1862, ch. 417.
23. An act to amend the act to organize the state
lunatic asylum for insane convicts, passed April 8,
1858. Passed April 17, 1863.
Laws of 1863, ch. 139.
24. An act to amend section first of chapter four
hundred and seventeen of the Laws of 1862.
Laws of 1863, ch. 415.
25. An act in relation to contracts and labor at the
state prisons of the state. Passed May 5, 1863.
Laws of 1863, ch. 465.
26. An act in relation to the compensation of the
several officers of state prisons. Passed April 23,
1864.
Laws of 1864, ch. 300.
27. An act to amend section second of chapter four
hundred and fifteen of the Laws of 1863.
April 23, 1864.
Laws of 1864, ch. 321.
Passed
The provisions of the statutes in force prior to Decem-
ber, 1847, were embraced in the general act, Laws of
1847, ch. 460; and the former statutes themselves re-
pealed by section 160 of that act. That section is as
follows:
"This act shall take effect on the first day of January,
one thousand eight hundred and forty-eight, and from
that time the acts and parts of acts hereinafter enume-
rated, except such provisions therein as are temporary in
406
THE PENAL CODE
their nature, and have not yet been fully executed, shall
be and are hereby repealed: the whole of chapter third
in the fourth part of the Revised Statutes; 'an act con-
cerning convicts under the age of seventeen years,'
passed April 16, 1830; 'an act relative to the state
prisons,' passed April 20, 1830; 'an act for the erection
of state prison buildings for female convicts,' passed
April 20, 1835; 'an act in relation to the state prisons,'
passed May 11, 1835; 'an act to authorize the formation
of a militia company for the protection of the Mount
Pleasant state prison,' passed April 24, 1835; 'an act in
relation to Geneva college,' passed April 20, 1836; ‘an
act relative to state prisons,' passed April 23, 1836;
an act relative to the state prisons of the state of New
York,' passed March 20, 1837; 'an act in relation to
state prisons,' passed April 25, 1832; 'an act for the
better regulation of the state prisons at Auburn and
Mount Pleasant,' passed May 4, 1840; 'an act concern-
ing the state prison at Mount Pleasant," passed March 8,
1832; 'an act in relation to the state prisons,' passed
May 20, 1841; 'an act supplementary to an act entitled
'an act to authorize the formation of the militia company
for the protection of the Mount Pleasant state prison,'
passed April 24, 1835,' passed April 7, 1842; 'an act in
relation to convict labor in the state prisons,' passed
April 9, 1842; 'an act in relation to state prisons,'
passed May 1, 1844; 'an act in relation to the trial of
convicts in county and state prisons,' passed January 31,
1846; 'an act to amend an act entitled 'an act in rela-
tion to the trial of convicts in county and state prisons,'
passed February 3, 1847; the first six sections and the
eleventh section of an act entitled 'an act to amend an
act in relation to state prisons,' passed April 16, 1845;
the second section of an act entitled 'an act authorizing
the establishment of a medical faculty in the University
of the city of New York,' passed February 11, 1837;
the fourth section of chapter eighty-six in the laws of the
first session of 1847, and the third, fourth and fifth sec-
tions of an act entitled 'an act making an appropriation
for the relief of the Mount Pleasant state prison,' and
for other purposes, passed May 13, 1846; and from the
same time all other acts and parts of acts that are incon-
sistent with the provisions of this law or that are
embraced therein, shall be and are hereby repealed."
Time when S 1071. This Code shall take effect on the
Code takes
effect. day of
186
1
APPENDIX.
APPENDIX A.
A
BRIEF ACCOUNT
OF THE
PRINCIPAL PENAL CODES
OF
CONTINENTAL EUROPE.
The statements of this article are, for the most part, drawn from an
official report upon the subject, made in 1853, by Hon. H. S. SANFORD,
formerly chargé d'affairs of the U. S., at Paris, to the President of the
United States. They are believed to be substantially accurate down to
the date of that report; but the time at the disposal of the commis-
sioners has not admitted of a close inquiry for modifications which
may have been introduced since that time in the penal law of the
countries to which reference is made.
It should be added that in the present article no mention is made of
Codes, or parts of Codes, which relate to matters of Procedure.
PENAL CODE OF FRANCE. (Code Pénal.)
The earliest systematic penal law in France was the ordinance of
1539. It was almost wholly occupied with regulations of procedure,
and the forms introduced by it were arbitrary and barbarous. In
1670, Louis XIV published an ordinance which mitigated the severity
of that of 1539, and increased the independence of the criminal courts.
The criminal law continued, as thus established, until the revolution of
1789.
One of the principal reforms wrought by that revolution was in
penal legislation. A new Code embracing important principles of
52
iv
THE PENAL CODE.
criminal law, and not merely regulations of procedure, was promul-
gated in 1791. This formed the basis of a Code adopted, after long
discussion and deliberation, under the government of Napoleon I, and
which took effect in 1811. It continued in force, with few changes,
until 1832, when a new Code was published, by the government of
Louis Philippe. The alterations were, however, but limited; the prin-
cipal object of the new Code being to assuage the severity of some
punishments; to abolish certain others, e. g., the pillory, which were
considered inconsistent with the spirit of the times; to reduce other
penalties, e. g., banishment, to narrow limits; and, lastly, to mitigate
the surveillance of the police. An additional mitigation was intro-
duced in 1835, by the adoption of the rule by which the jury may find
a verdict of guilty under "extenuating circumstances;" which qualifi-
cation of the verdict entitles the accused to a mitigation of punishment.
The Code Pénal thus dates from 1832; but it is substantially founded
upon that of 1791. It is divided into four books, to which is prefixed
a short introduction. The first book treats of punishments and their
consequences; the second, of persons who are punishable, excusable, or
responsible for crimes or misdemeanors; the third, of crimes and mis-
demeanors themselves, and their punishments; the fourth, of police
infractions and their punishments.
All prohibited actions are divided into: Contraventions, Délits, or mis-
demeanors, and Crimes. These grades of offense are not defined, but are
classified according to their degrees of punishment. Contraventions,
which are lowest in the scale, and which come within the jurisdiction
of the Tribunal de Police, are punishable by a fine not exceeding fifteen
francs, or imprisonment not exceeding five days. Misdemeanors are
those offenses made punishable with upwards of fifteen francs fine, or
five days imprisonment; they fall within the jurisdiction of the Tribunal
Correctionnel. The last and highest grade, crime, is judged by the
Cour d'Assizes, and is subject to an "afflictive" or "infamous" punish-
ment.
This division of offenses forms the basis of the jurisdiction of the
French tribunals. They are of three grades. A single officer, either
a justice of the peace (Juge de paix) or mayor (Maire), is judge of the
Tribunal de Police. The Tribunal Correctionnel, which passes judg-
ment upon misdemeanors, is composed of three members of the tribunal
judging in first instance, (Tribunal de Première instance,) which is
also the tribunal for civil cases of the first category. The Cour ď
Assizes, which has the jurisdiction of crimes, is composed of three
members of the Court of Appeal (Cour d'Appel), and has a jury.
Appeal from the decision of the Tribunal Correctionnel can be made
to the correctional chamber of the Court of Appeal. Persons con-
demned for contraventions may appeal to the Tribunal Correctionnel;
APPENDIX A.
γ
but no appeal is allowed for a punishment of less than three francs.
There is no appeal from a sentence of the Cour d'Assizes; but in case
of a formal or material violation of the law, recourse can be had to the
court of cassation; and a new trial must follow before another Court
of Assizes.
To complete the description of the organization of the tribunals of
France, and the connection of its judicial hierarchy with the administra-
tive division of its territory, it may be proper here to remark, that France
is divided into eighty-six departments, each department being governed
by a Prefect with a council, and subdivided, according to the size of the
department, into arrondissements, governed by Sub-Prefects. The arron-
dissements are divided in turn into cantons, which are subdivided into
communes.
Each canton has a Juge de paix; and, consequently, a Tribunal de
police. Each arrondissement has a Court of First Instance (Tribunal
de Première Instance) divided into civil and correctional chambers.
Each department has a Cour d'Assizes composed of members of the
Cour d'Appel.
At the head of all is the Cour de Cassation, the seat of which is at
Paris. This consists of three chambers, of which two are for civil
affairs, and the third for criminal cases.
There is a public prosecutor connected with every court. At the
police court he is the commissary of police; at the Tribunal of first
instance he is the "Procureur Imperial," at the court of appeal he is
the "Procureur Général." The chief of the whole body of prosecu-
tors is the Procureur Général of the Court of Cassation.
The following is an analysis of the Code Pénal:
BOOK I: PUNISHMENTS AND THEIR CONSEQUENCES.
The Code Pénal differs from most existing codes, in commencing
with the punishment, instead of the description of offenses. Instead
of definitions of offenses, their nature is indicated by the punishments
which follow them.
Punishments of CRIMES are either "afflictive and infamous," or sim-
ply "infamous." Punishments of MISDEMEANORS are "afflictive," with-
out being degrading. There are also certain punishments which are
common to both crimes and misdemeanors.
A defect in the system is, that the infamy results, not from the
intrinsic nature of the crime, but from the accidental nature of the
punishment.
The following are the punishments prescribed, for CRIMES:
Capital punishment. The crimes punishable with death are:
High treason.
Exciting to civil war.
vi
THE PENAL CODE.
:
Seducing the troops from their duty.
Usurpation of any of the rights of the executive.
Conspiracy of public functionaries against the internal safety of the
state.
Blows or wounds inflicted on a public agent (with intent to kill)
when he is in the performance of his duties.
Murder; Parricide; and Infanticide.
Sequestration of any person, accompanied by physical torture.
Perjury or bribery of witnesses, when it results in a sentence of
death.
Arson, when it consists in burning an inhabited or habitable building.
The jury may declare the existence of extenuating circumstances, in
which case the punishment is commuted.
The mode of capital punishment is decapitation. In case of parri-
cide, the punishment is aggravated by the criminal being compelled to
walk barefooted to the scaffold, clothed only in a shirt, with a black
veil over his head, and being exposed on the scaffold while the sentence
of condemnation is read.
The execution is public, and takes place in one of the public squares.
The family of a criminal who has been condemned to death can claim
his body after execution, but upon the express condition that it be
buried without ceremony.
Imprisonment and hard labor for life. The crimes subject to this
punishment are:
Counterfeiting gold or silver coin.
Passing the same.
Counterfeiting the seal of the state, bank bills, or state bonds with
the government stamp.
Counterfeiting on the part of a public officer in the exercise of his
functions, whether by false signatures, or by alteration of acts, writings,
or signatures, or by substituting the names of persons in public docu-
ments (whether by additions or interpolations), after such documents
have been completed; or by altering or interlining public records in
any way.
The fraudulent distortion of the substance or details of any official
paper on the part of the functionary who draws it up, whether the
fraud consists in writing agreements other than those which have been
dictated to him by the parties, or in stating as true facts, which are
false, or in falsely certifying as to facts agreed upon by the parties to
the instrument.
The commission of violence, resulting in death, against a public
agent or functionary, while in the performance of his duties.
The furnishing of arms by a prison officer to a prisoner to assist him
in his escape.
1
APPENDIX A.
vii
Homicide, when neither preceded, accompanied, nor followed by
another crime; and also when it had for its object either to prepare,
facilitate, or commit a misdemeanor, or to assure the safety of the
authors or accomplices in a misdemeanor.*
Premeditated corporeal injury, resulting in immediate death, or fatal
wounds, when this injury is inflicted upon a legitimate or illegitimate
father or mother, or upon other legitimate ascendants, and when the
injury, if committed by another, would be punished with hard labor
for a term of years.
Violation of a child under fifteen years of age, accompanied by per-
sonal injury, and when the guilty person has a certain authority over
the child, whether that of parent, teacher, priest, or public functionary,
and when the criminal has been aided by one or more persons.
The detaining or sequestration of a person against his will for more
than a month.
The exposure and abandoning of a child, when death follows such
exposure.
False witness against any one accused of crime, when followed by
sentence to hard labor for life-in which case, the false witness is
subjected to the same punishment.
Bribery of witnesses is a similar case, and is followed by similar
results.
Robbery, attended by the following circumstances: if committed in
the night; if committed by two or more persons; if the criminal or
either of his accomplices was armed, secretly or openly; if committed
in an inhabited house, apartment, chamber, lodging, or any place
serving for a habitation, or any outhouses belonging thereto, by means
of false keys, or scaling the walls, or the use of any external violence;
when the criminal takes the title of a public functionary, or of any civil
or military authority; when committed by corporeal violence, or threat
of arms; and when the criminal inflicts personal wounds, or leaves.
marks of contusion.
Fraudulent bankruptcy by exchange agents and brokers.
Arson committed under certain circumstances.
Transportation has been employed as a punishment for political
offenders; but only to a limited extent.
Imprisonment and hard labor for a term of years. This punishment
is very common. The duration of it is not less than five, nor more than
twenty years. It is applied to the following offenses:
Counterfeiting or altering the copper coins of French or foreign cur-
rency, or passing or assisting in the circulation of counterfeit copper coin.
*In this last case as in the one preceding, however, the punishment may be death.
viii
THE PENAL CODE.
Counterfeiting the common stamp of the state, or the gold and silver
stamp, or the timber mark.
The forgery of legal documents, or of commercial or banking paper,
whether by counterfeiting or altering the writing or signature, or by
the writing of false articles of contract, or false provisions to legal
documents, or false indictments, or false codicils, or the alteration of
clauses, depositions or statements of which any legal document is com-
posed, or assisting in the execution of, or in any way practising such
forgeries.
The giving of a passport, on the part of a public officer, made out in
a name, which he knows to be false.
The embezzlement or purloining, on the part of a clerk, receiver,
public depositary or accountant, of public or private money, or current
bills, or documents, or titles, or movable effects, which may be in his
possession by virtue of his functions, provided the value is over 3,000
francs; and no matter what may be the value of the embezzled or pur-
loined property, if this property exceeds or equals a third of the whole
receipts or deposits in the offender's possession; or if it consists of
money, or documents received or deposited as security; or if it is a
receipt or deposit attached to a place requiring security; or if, lastly,
it is a third of the common product of the receipts for one month, or a
receipt composed of successive entries not subject to security.
The destruction, suppression, embezzlement, or intentional mislaying,
by any judge, administrator, or public officer, or functionary or clerk
(whether of government or of any public depositary), of acts or docu-
ments, of which he is, in his official capacity, the depositary, or which
have been confided or communicated to him in his official capacity.
Rebellion, when more than twenty armed persons are engaged in it;
Favoring the escape of a person condemned to death or to hard labor
for life, whether by the guardian of the prison or persons who have
corrupted him.
Breaking of seals.
The forming or commanding of bands before any crime has resulted
from their organization.
Wounds given with premeditation, or lying in wait.
The suggestion or application of means of abortion by physicians,
when followed by the effect intended.
Violation of a child under twelve years of age.
Bigamy.
Sequestration of a person without the order of the proper authorities,
except, in those cases provided for by law.
Exposure of a child.
Abduction of a girl under sixteen years old.
Perjury for money.
APPENDIX A.
ix
Aggravated theft.
Misdemeanors of constructors or purveyors.
Those who in these numerous cases have been condemned to hard
labor are employed at the severest kind of work. Each one has a chain
and ball attached to his foot. When the nature of the work permits it
they are chained together in couples. Women and girls condemned to
hard labor, are employed in the interior of the prisons. The men,
generally, work in the open air.
Those who are condemned to hard labor and confinement are ex-
posed, for one hour, on a public place. A writing placed over the head
gives, in large legible letters, the name, profession, domicile, crime, and
punishment of the criminal. This punishment cannot be pronounced
against minors under eighteen years of age, or septuagenarians. The
court of assizes can also, when the condemnation is not for life, and when
it is the first offense of the criminal, direct that it be dispensed with.
The Penal Code of 1832 substituted for the pillory, public exposure.
The only mitigation of the severity of this kind of punishment is in
the power given to the court of assizes of dispensing with it, which is
frequently done.
Another consequence of this punishment, as well as of réclusion,
détention, and banishment, is civil degradation, which involves the
being placed under the surveillance of the high police, and deprivation
of all civil rights.
A brief abstract of the sentence is printed and posted in the chief
town of the department,. or in the city where it was pronounced; in
the commune of the place where the offense was committed; in that
where the sentence is executed; and in that of the domicile of the
criminal.
Dètention. Those who are sentenced to this punishment are confined
in some one of the fortifications in continental France. The prisoners
communicate with the persons in and out of the fortifications, according
to a police regulation established by an ordinance of the executive
power.
This punishment cannot be pronounced for less than three nor more
than twenty years. It is applicable to:
Conspiracy, when not followed by an over act.
Design upon the life of any member of the reigning family, when
formed by one person alone, and followed by some overt act towards
its execution.
The irregular celebration of a marriage by a priest who has not first
satisfied himself, by presentation of the acte civil, that the marriage has
been regularly contracted, and who has been already punished twice
for a similar omission. In explanation of this provision it may be
remarked, that the civil code recognizes no other marriage than the
X
THE PENAL CODE.
mariage civil, which must be performed before a civil magistrate,
according to certain prescribed forms-a regulation provided by
Napoleon, in order to diminish the influence of the clergy.
Writing a direct provocation to the disobedience of the laws, or to
any act of the public authorities, or which has a tendency to excite
citizens to take arms.
Réclusion. This consists of imprisonment in a penitentiary, in which
the prisoners have a choice of labor in several trades. The duration of
this punishment is not less than five or more than ten years. A decree
of 25th of February, 1852, regulates the work in the prisons. The
prisoners who are not directly employed by the administration in
works destined to the service of the prisons, or to the public service,
can be employed in works of private industry, under certain conditions,
determined on by particular regulations. In virtue of this decree, the
minister of the interior has issued a regulation, by which the employ-
ment at different works, which may be exercised in the maisons cen-
trales and prisons of the Seine, is fixed by contract and by public
competition.
With the consent of the administration, the manufacturers in the
prisons can make experiments, which may be introduced at a later
period in their establishments.
The minister of the interior fixes the minimum and the maximum of
the number of prisoners who can be employed at each trade.
This penalty is inflicted for:
Counterfeiting, under certain circumstances, whether of money or
documents.
Bribery of a judge or jury in criminal affairs.
Abuse of authority in certain cases, or aiding or abetting the same,
when against the commonwealth.
Rebellion without arms, when more than thirty persons are engaged
in it, or with arms, when it consists of from three to twenty persons.
Premeditated violence against public functionaries, or their agents,
when it causes wounds, sickness, or the shedding of blood.
Favoring the evasion or escape of a prisoner.
Breaking the seals of public documents, or taking them away from
public depositories.
Lending any assistance to a band or association of malefactors,
formed against persons or property; or knowingly and voluntarily
furnishing weapons, munitions, instruments of crime, lodging, retreat,
or place of meeting, to any such band, or to any portion of it.
The commission, on the part of a beggar or vagrant, of any act of
violence for which, owing to the peculiar circumstances, other and
severer punishments have not been provided.
Using of false certificates, passes or passports by beggars or vagrants.
1
APPENDIX A.
xi
4
Assault and battery, causing wounds or sickness, or leading to
inability to work for twenty days; or committed against a parent or
grandparent.
Furnishing the means for producing abortion in a pregnant woman,
when by the use of the same there results sickness, or inability to labor
for more than twenty days.
An indecent assault, attempted or committed, without violence, on
the person of a child of either sex, under eleven years of age, or any
such assault on a person over fifteen years of age.
The abduction of a child; the concealment or denying the existence
of a child; the substitution of one child for another; or the passing
off of a strange child as the child of a woman who has never been
delivered.
The abduction of minors, or enticing them away from their proper
guardians.
Perjury, without bribery, in a trial for misdemeanor, or a simple
police case.
Banishment. Persons who are condemned to banishment, are con-
ducted to the frontiers of the State, under order of the government,
and there set at liberty.
This punishment, which dates back to the Roman law, was abolished
by the code of 1791, but re-enacted by the code of 1810.
In case the banished person returns to the country before the
expiration of his term, he is condemned, on the simple evidence of his
identity, to imprisonment for a term of years at least equal to, but
never more than double, his unexpired term of banishment.
Civil Degradation. This is rather an accessory than an independent
punishment, being the result of a condemnation to détention, réclusion,
or banishment.
The punishments of hard labor for life, of transportation, and of
death, involve also civil disability, or, as it is sometimes called, civil
death, the chief characteristics of which are, the loss of all property on
the part of the condemned; the opening of a new succession in favor
of his legal heirs; incapacity to dispose in any way of his property, in
whole or in part; incompetency to perform any civil act; and, finally,
so far as its civil effects are concerned, dissolution of marriage.
The results of civil degradation are:
Forfeiture of all political, but not civil rights.
Dismissal from public functions or employments.
Deprivation of the right of voting, or of being elected to any office.
Incapacity to give evidence in public affairs, or to be a juryman or
an official appraiser or surveyor.
Exclusion from acting as a tutor or guardian, &c.
53
xii
THE PENAL CODE.
Deprivation of the right to bear arms, to belong to the national
guard, to serve in the army, to keep school, or to be employed in any.
educational institution.
The only instances of civil degradation without previous punishments
are for:
Fraud at clections, such as fraudulently taking away or altering
ballots.
The infringement on the personal liberty of a citizen by the arbitrary
action of a public officer.
Willful resignation of a public office for the purpose of preventing or
suspending the administration of justice, or of any public affairs.
The usurpation, on the part of a judge, of legislative or administra-
tive functions which do not belong to him.
The taking of pay by a public officer, for doing his duty, when no
pay is allowed by the law.
Insult offered to a judge in court, or to a priest while in the exer-
cise of his functions.
The bribery of witnesses in a case before the correctional police.
Perjury in civil procedure, is provided for in the same way.
The punishments for misdemeanors are as follows:
Temporary imprisonment. This is not for less than six days, nor
more than five years, except in case of repetition of an offense, when
the judge, in view of aggravating circumstances, can increase the
punishment. Persons sentenced to imprisonment are confined in a
house of correction, where they have the privilege of choosing some
kind of labor. The product of their labor is applied partly to the
expenses of the prison, partly where it is merited, to procure some
alleviation of the lot of the prisoners, and partly to form a reserved
fund, which is given to the prisoner on the expiration of his sentence.
Temporary forfeiture of certain political and social rights. The
rights which in case of civil degradation are completely annulled, are
in this case merely suspended.
Fine. This punishment is either pronounced separately, or in addi-
tion to imprisonment. In the system of fines imposed, no allowance is
made for the difference of property of offenders.
Damages and surveillance. In addition to the above described pun-
ishments, the law allows, in certain cases, both in crimes and misde-
meanors, that pecuniary damages should be awarded to the party
injured by the crime; and, also, that an offender should be placed
under the "surveillance" of the high police. This surveillance is a
punishment which was much mitigated by the Code of 1832. By the
original penal code, persons who incurred it had to give bonds for
good behaviour, on leaving prison, and were compelled, besides, to
1
APPENDIX A.
xiii
reside in some place appointed by the magistrate. In the code of 1832,
this provision was abolished, and the government allowed only to
designate certain places to which the criminal should not go.
At the expiration of his term of imprisonment, the criminal must
declare where he intends to reside, and is furnished with a passport to
that place, by which he must regulate his route, and from which he is
not to deviate. This passport indicates also the time he can rest in
each place on the route.
Within twenty-four hours after his arrival, he must present himself
at the mayor's office, and not leave it till he has received a new pass-
port. In case of violation of either of these provisions, he is liable to
imprisonment for a term not exceeding five years.
Police punishments. To this lowest class of penalties belong impri-
sonment and fine, and the confiscation of certain objects seized by the
authorities.
The penalty of imprisonment pronounced by the police courts cannot
be less than one day, or more than five days, according to the distinc-
tion and classes laid down by law. One day's imprisonment is a term
of twenty-four hours.
The fine can be from one to fifteen francs, inclusive, and is also pro-
nounced according to the different classes and distinctions of the law.
Fines are applied to the benefit of the commune where the offense was
committed.
In certain cases fixed by law, the police court can pronounce the
confiscation, either of the object seized, or the materials or instruments
which have served, or were destined to commit the offense.
BOOK II. CONCERNING PERSONS PUNISHABLE, EXCUSABLE, OR RESPONSI-
BLE FOR CRIMES OR MISDEMEANORS.
This book contains general provisions concerning the personal effects
of a punishable action; and rules concerning participation in a punish-
able action. It is divided into two parts; the first treating of the
consequences of the participation of several persons in the same crime
or misdemeanor; the second, defining the circumstances which make
the act of an individual punishable. The judge and jury are not limited
in their decisions in the last respect, as they have in every case to
determine whether there is impunity, and to what extent. The law
gives merely the general grounds which are demanded by equity and
morality, without ever making the application to a single case. Com-
plicity differs therefore from culpability as a principle, in so far that,
in what regards the first, the law defines clearly and fully its nature.
and consequences; while in what regards the second, all the circum-
stances which constitute an offense are not positively defined, but only
xiv
THE PENAL CODE.
negatively; and there are some exceptions in which a complete or
partial exercise of judicial discretion is allowed.
Complicity. By complicity in its widest sense is understood the
action of a person who has participated in the preparation, execution,
or consummation of a crime. It is of a two-fold nature-material and
moral. The material participation consists in furnishing the means of
execution; the moral participation consists in the direct or indirect
provocation to crime by means which are particularly defined by the
law. In article 60 every case of complicity is detailed.
According to this article, there are punished as accomplices:
Those who have excited to crime, or aided and abetted in it by gifts,
promises, threats, abuse of authority or of power, machinations, or
guilty artifices.
Those who may have furnished arms, instruments, or any other
means which may have served in the commission of the offense, know-
ing that they were to be so used.
Those who have knowingly aided and abetted the author or authors
of a crime by any acts which may have prepared or facilitated its
execution.
This is without prejudice to the punishment specially prescribed
against the authors of complots, or of provocation against the exterior
or interior security of the state, even in the case when the contemplated
crime of the conspirators has not been committed.
(6
In order to better understand this last provision, it must be remarked
that a very important distinction exists between "complicity" and
complots." Both are alike in this, that in both there exists a co-opera-
tion of several; the difference between them is, that complicity is in
general the participation of several, whilst the complot is either alone
a particular offense on account of the object of the association; or with
the complot the grade of the offense, and the quantum of the punish-
ment, in certain cases designated by the law, are augumented. In
other words, in case of complicity, the participation in the case of each
individual is examined separately, and the 'fact of the co-operation of
several is regarded as accidental and without influence. In case of com-
plot this distinction of the particular participation is not established,
and the fact of the association or conspiracy is alone the ground of the
punishment.
In the Code Pénal, complot, in this last signification, is treated of in
articles 265 to 268. <<
Complot" is, in article 265, called a crime against
public peace, and is defined as "every association of malefactors
against personal property."
The article following shows clearly the nature of a complot as has
been described. According to it, the complot exists by the fact alone
of the organization of bands, or correspondences between bands and
APPENDIX A.
XV
their chiefs and commanders, or by the fact of covenant, even agreeing
to render account, or to make peculiar divisions of the products of the
misdeed. The members of these bands are punishable by temporary
hard labor; and those who are not members of the band, but have
knowingly co-operated with the same, are punished by réclusion.
Under the term "complicity," those persons are punished as accom-
plices who, knowing the criminal intentions of malefactors proposing
robbery, or violence against the security of the state, the public peace,
persons, or property, furnish them habitually lodging, or places of.
retreat, or of meeting; and also those who have knowingly received
and secreted objects taken away, embezzled, or obtained by means of
any
crime or misdemeanor.
The accomplices in a crime or misdemeanor are subject to the same
penalty as the authors, except in a few cases where the law has pro-
vided otherwise, and except that the judge has power to prescribe a
different measure of punishment, by graduating it according to the
degree of the offense, and act within the limit of punishment prescribed.
It has been decided by the court of cassation, that when the punish-
ment must be more rigorous, in consequence of the repetition of the
crime, this aggravation does not touch the accomplice, because the repe-
tition is a personal matter, and does not affect the nature of the crime
itself.
It has been also decided, that an accomplice can be prosecuted and
punished, even when the principal cannot be prosecuted-for example,
in case of flight or death of the latter.
In the treatment of the subject of complicity, striking differences
are observable, between the French Penal Code and the codes of
other continental nations.
Persons excusable from punishment. Article 64, of the Penal Code,
contains most important provisions, to the effect that neither a crime
nor a misdemeanor exists when the accused is in a state of mental
alienation at the time of the commission of the act, or when he is
constrained by a force which he cannot resist.
The laconicism of the French code on this subject is not to be found
in most of the other codes, where want of intelligence or free will are
specified. Some codes go so far in this respect, that they enumerate
the cases of mental alienation one might almost say medically. For
example, the code of Oldenburgh, which speaks even of melancholy as
a ground of impunity.
Other codes speak specially of the deaf and dumb, and make a
special distinction between those who by their education have reached
such a degree of intelligence, that it is to be supposed they can dis-
tinguish good from evil; and those whose mental and moral incapacity
is as unfortunate as their incapacity for hearing and speaking. Many
rvi
THE PENAL CODE.
codes treat of very old age, and declare those persons who have reached
their second childhood to be irresponsible.
The French code has established a general formula, under which all
these particular cases fall, and has thereby a great advantage over other
codes, for the greatest controversies always arise in the settlement of
individual and exceptional cases, concerning which the other codes are
always insufficient and defective.
The judge or jury must seek in every particular case to know if the
offender was exposed to influences dr impulses which he was incapable
of resisting; if he was a responsible being in the full exercise of free
will and mental capacity; or if, in the absence of those mental and
physical qualities which distinguish rational men from lunatics and idiots,
he had not ceased to be an accountable being. Lastly, when there is
full possession of the mental faculties, an offense may be committed
under circumstances which could not have been resisted, as, for example,
when the husband kills the adulterer whom he surprises in flagrante
delicto, he may be said to have been impelled by an irresistible force.
If he kills the adulterer some time after the adultery has been com-
mitted, then it cannot be said that he acted under the influence of
irresistible force, for it is to be supposed that in the interval his reason
had resumed its sway.
The French code contains not one word about drunkenness, and it
is only necessary to know if a man in that condition was so far clouded
in his faculties as to have been impelled by a force which such a state
of mind made him unable to resist. The court of cassation, however,
has repeatedly decided, that drunkenness was no ground for excuse or
impunity.
?
The Penal Code does not speak of self-defense in the general part of
the second book, but only in the special part of the third book, in
which the different crimes and misdemeanors are treated of. Homicide,
wounds, or blows, necessitated by legitimate self-defense, constitute
neither crimes nor misdemeanors. This legitimate defense exists:
1st. When the homicide is committed, or the wounds or blows given
result from repelling an attempt to break into enclosures, over walls,
or into the entries of a dwelling house, or inhabited apartment; 2d.
When committed in defending one's self against robbers or persons
engaged in pillage by means of violence.
In some cases, the French law declares an offender excusable in
manslaughter. For instance, wounds and blows, when provoked by
wounds or violence against the person, or when committed in repelling
a breaking into an inhabited house during the day; the killing of an
adulterous wife or her accomplices when caught in the act; and even
the crime of castration, when it is provoked by a violent indecent
1
APPENDIX A.
xvii
assault. In these cases, the excusability does not imply complete
impunity, but the ordinary punishment is greatly diminished.
Concerning youth, the French code decides that when the accused is
less than sixteen years of age he shall be acquitted, provided it is
ascertained that he acted without discernment. But in that case he
is either given over to his parents or put into a house of correction, in
order to be educated and reformed. In the latter case he is detained
as long as the sentence of the court determines, which time, however,
cannot extend beyond the epoch at which he shall have completed his
twentieth year. If it is decided that he committed the offense with
discernment that is, with a knowledge of its character-he is pun-
ished, but with a milder punishment than in ordinary cases. Thus,
instead of punishment of death he is sentenced to imprisonment and
hard labor for life. Instead of transportation, he is condemned to
imprisonment from ten to twenty years in a house of correction. In-
stead of imprisonment and hard labor for a term of years with détention
or réclusion, he is condemned to confinement for a term equal to one-
third at least, and one-half at most, of the term fixed by law. Instead
of civil degradation and banishment, he is condemned to confinement
in a house of correction for from one to five years.
A child under sixteen years of age, and having no accomplices older
than himself, who is accused of a crime other than that which the law
punishes with death, imprisonment and hard labor for life, transporta-
tion, or détention, is not judged by the court of assizes but by the
tribunal correctionnel, and according to the rules which have been given
above.
In all cases, when the minor, under sixteen years of age, has com-
mitted only a simple misdemeanor, the punishment pronounced against
him cannot exceed the half of the punishment which he would have
been sentenced to had he reached sixteen years.
"Extenuating Circumstances."-A general principle of the French
code is, that no crime or misdemeanor can be excused, except in those
cases especially provided for by law. In a similar manner, there can
be no mitigations of punishments, except in cases provided for by par-
ticular provisions. There is one case only, that of parricide, where no
extenuating circumstances or palliation is allowed. In all other crimes
and misdemeanors, the punishment can be mitigated, when extenuating
circumstances are shown to have existed.
The code of 1832 set forth an entirely new theory on this point;
according to which, whenever there are extenuating circumstances, the
punishment is changed and graduated, according to a given scale. The
existence of extenuating circumstances is decided in each case by the
jury. The correctional courts can also decide on this subject. In this
theory the French code stands alone; in the other codes extenuating
xviii
THE PENAL CODE.
circumstances have only this effect, that the judge chooses within the
minimum and maximum of the punishments fixed by law, and, accord-
ing to his judgment, pronounces either the minimum or an appropriate
quantum. The peculiarity of the provisions of the French law can be
explained, when it is understood that the legislator wished to give the
judge the power to make in every case an exception to the rule, in
favor of the accused, for whom the general punishment seemed too
severe. The most prominent writers on criminal law, and more
especially Fautin-Hélie, in his excellent work on French penal legisla-
tion, criticise this system, on the ground that the judge wields too
great a power, and that by admitting an exception to every rule, in
the end no general rule can remain.
The punishment of imprisonment and hard labor for life, of transpor-
tation, and of imprisonment and hard labor for a term of years, cannot
be pronounced against any person over seventy years of age. These
punishments are replaced in each case in the following manner: Trans-
portation is changed to imprisonment for life; hard labor to confinement.
Also, when a person condemned to imprisonment and hard labor reaches
seventy years before the expiration of his sentence, he is freed from
that punishment and confined in a maison de force for the remainder
of his term of punishment.
Second offenses. Whoever has committed a crime, and on this
account is condemned to an afflictive or infamous punishment, is, on
the commission of a second crime, which has for its punishment civil
degradation, condemned to banishment. When the penalty for the
second crime is banishment, he is condemned to détention. When
the penalty in the second instance is réclusion, he is condemned to
imprisonment and hard labor for a term of years. When it is détention,
he is condemned to the maximum of the same punishment, which, in
certain cases, can be doubled. When it is hard labor and imprisonment
for a term of years, he is condemned to a maximum of this punishment,
which can also, in certain cases, be doubled. If it is transportation, he
is condmned to imprisonment and hard labor for life. And, when it is
imprisonment and hard labor for life, he can be condemned to death.
Whoever, after having been punished for a crime, commits after-
wards a misdemeanor, which is liable to correctional punishment, is
condemned to the maximum of this penalty, which can also, in certain
cases, be doubled.
Whoever has already been punished for a misdemeanor by imprison-
ment of over one year, is condemned to the maximum of the punish-
ment provided for the new offense, which can also be doubled, and is
also placed under the surveillance of the high police, during not less
than five, nor more than ten years.
In its provisions touching the repetition of offenses, the French code
APPENDIX A..
xix
differs from all others in this respect, that the increased severity of a
punishment, on account of a former condemnation, does not depend on
the identity of the two offenses, but on the nature of the punishment
to which the criminal was before condemned. This theory is logical
with the whole system by which crimes and misdemeanors are not
separately defined, but depend upon the punishments which are at-
tached to them.
Condemnation for imprisonment of less than one year has no influ-
ence on the sentence for a second misdemeanor.
For contraventions, the second offense involves increased severity of
punishment only when it occurs within a twelve month of the first
offense, and within the jurisdiction of the same police court.
Cases of repetition of offense have also the peculiarity, that the pun-
ishment cannot be mitigated on account of extenuating circumstances,
excepting at the correctional courts, and then only in the case of the
punishments of imprisonment or fine. In this last case, when there are
extenuating circumstances, the imprisonment can be reduced to less
than six days, and the fine to less than sixteen francs. The correctional
courts can even pronounce these penalties separately, and in certain
cases substitute fine for imprisonment; without, however, pronouncing
a penalty less than that of the police court.
A jury, although it always decides in a matter of extenuating circum-
stances, has no decision in the matter of second offenses. The consid-
eration of these belongs exclusively to the judge, who, on the basis of
the verdict of the jury, applies the law and determines the punishment.
Duration of punishment. A punishment ends not only by the expira-
tion of its term, but also for other legal reasons. It has already been
shown that the punishment of imprisonment and hard labor ceases at
seventy years of age. A more general case than this is the extinction
of a punishment by limitation, préscription.
The Penal Code does not treat of this subject; its principles, how-
ever, are laid down in the Code of Criminal Procedure. According to
these principles, limitation of a punishment for crime takes place in
twenty years, counting from the date of the sentence; for misdemean-
ors, in five years after date of sentence; for contraventions, in two
years after date of sentence. Prosecution on account of a crime
punishable by an afflictive or infamous punishment, cannot be insti-
tuted after a lapse of ten years from the day when the crime was
committed, if within this period no prosecution has been entered. A
misdemeanor cannot be prosecuted after three years have elapsed from
the date when it was committed, nor a simple contravention after one
year.
Limitations of the period for prosecution, as well as of the period of
punishment, are found in all European codes. The necessity and
54
XX
THE PENAL CODE.
·
justice of such limitations in these respects, is placed on the ground
that, after the expiration of a long period of time, the traces of a crime
become effaced, and at the trial the accused might easily be sacrificed
on vague and insufficient evidence.
BOOK III. CRIMES, MISDEMEANORS, AND THEIR PUNISHMENTS.
This book enumerates the crimes and misdemeanors in particular,
and gives the punishments attached to them; it exhibits the applica-
tion of the general principles set forth in the two previous books. It
commences with the divisions of crimes and misdemeanors.
These are divided into two classes, those against the state, and those
against individuals.
Crimes and misdemeanors against the State. These are divided into:
1. Those which compromise the security of the state; 2. Those which
are in violation of the constitution; and, 3. Those which disturb public
tranquillity.
In the first class are those offenses which, by means of communication
with a foreign enemy, affect the external safety of the state, in which
case the punishment is death; those which affect its internal safety by a
criminal attempt against the executive power, or his family, also punish-
able with death; or by crimes tending to trouble the state; by civil war;
by the employment of armed force; or by public devastation and pil-
lage; in which cases also, when the execution of the crime has been
commenced, the punishment is death.
In the second class are offenses which refer to the exercise of civil
rights at political elections, attempts upon the liberty of citizens by the
arbitrary acts of public officers, and encroachments on administrative
and judicial authority.
In the third class are, counterfeiting; malfeasance by public function-
aries in the exercise of their duties; troubles caused to public order
by the ministers of the different religions in the exercise of their func-
tions; resistance to, or disobedience of, public authorities; associations
of malefactors; vagabondage and mendicity; misdemeanors by writings,
images, or engravings, distributed without the name of the author
engraved or printed on the same; lastly, prohibited associations or
meetings.
Counterfeiting consists either in the preparing of false money (the
falsification of silver money being more severely punished than that of
copper money); or the counterfeiting of the seal of the state, or of bank
notes, public papers, stamps, timbres, and marks; or the counterfeiting
of public and authentic acts; or of commercial or banking paper; or of
private documents; or lastly, the counterfeiting of passports, traveling
papers, or certificates.
The offenses by public functionaries in the exercise of their functions,
APPENDIX A.
xxi
are the embezzlement by a public depositary of objects confided to him;
taking bribes; the demanding or taking by a public officer, in the
exercise of his functions, of money or taxes which are not due; taking
some part in commerce or in affairs incompatible with the office; the
corrupting of public officers; the abuse of authority in regard to indi-
viduals, e. g., the violation of the secrecy of letters; or in respect to the
state, e. g., misdemeanors concerning the keeping the registers of births,
marriages, and deaths; and lastly, in the exercise of public authority
illegally anticipated or prolonged.
Troubles to public order by ministers of religion, in the exercise of
their ministry, are either acts tending to compromise the social relations,
e. g., performing the religious ceremonies of a marriage before the
marriage has been duly celebrated as prescribed by the Civil Code; or
criticisms, censures, or provocation, directed against public authority
in a sermon publicly pronounced, or a pastoral writing; or correspond-
ence on religious affairs by the ministers of religion, with foreign courts
or powers, without having authorization for the same from the minister
charged with the surveillance of religion.
Resistance, disobedience, and other like offenses against public
authority, are, rebellion, that is, forcible attack, or violent resistance to
a public officer in the exercise of his functions; violence or outrage
against the depositaries of the government, when committed by words
tending to inculpate the officers; the refusal of a service legally due
(under which head falls the refusal of service by a commandant, officer,
or sub-officer of the public peace, and the case of a juryman or a witness
alleging a false excuse); promoting the escape of prisoners, and conceal-
ing criminals (the guardians of a prison, in case of an escape, being
punished according to the grade of punishment to which the prisoner
was condemned); the breaking of seals, or removing of documents from
the public departments; the defacing or mutilation of public monu-
ments; the usurpation of titles and functions; and hindrance offered to
the free exercise of religion.
To the category of associations of malefactors, vagrancy, and men-
dicity, belong associations of malefactors against persons and property;
and the vagrancy of persons who have no fixed domicile nor means of
subsistence, and who exercise habitually no trade or profession; and
the asking of alms in any place where there is a poor house.
Misdemeanors committed by writings, images, or engravings dis-
tributed without the name of the author printed or engraven on the
same. This category explains itself. By a law of 10th December,
1831, no writings on political subjects can be publicly posted or
distributed in the public streets or squares.
•
Forbidden associations are those which, composed of more than
twenty members, assemble at fixed times for the discussion of religious,
xxii
THE PENAL CODE.
political, or literary subjects, without having obtained the authorization
of the government.
Crimes and misdemeanors against Individuals. These are divided
into 1. Those against persons; and, 2. Those against property.
In the first class are:
Murder, or voluntary manslaughter.
Assassination, or murder with premeditation and lying in wait.
Threatening, by anonymous or signed letters or writings, to commit
assassination, poisoning, or any crime against others, punishable with
death, hard labor and imprisonment for life, or transportation. The
penalty for such menace is imprisonment and hard labor for a term of
years, in case the threat is accompanied by an attempt at extortion,
such as ordering the deposit of a sum of money in a particular place,
or any requirement of the kind.
Voluntary wounds or blows, without intention to kill, or any other
voluntary crimes named in the laws, such as the fabrication of prohib-
ited arms, castration, abortion, or sale of adulterated liquors containing
mixtures injurious to the health.
Involuntary homicide-that is, homicide resulting from imprudence
or negligence; also wounds and blows inflicted under the same circum-
stances.
Attempts against morals, including violation of the person; corrupt
ing and debauching of persons under twenty-one years of age; adultery
on the side of the wife, which can only be denounced before the law
by the husband; and on the side of the husband, but only in case of his
keeping a concubine in the conjugal residence; and bigamy.
The illegal arrest and sequestration of persons.
Crimes and misdemeanors tending to interfere with or destroy the
civil and social condition of a child, or to compromise its existence;
the abduction of minors; and infraction of the laws concerning inhu-
mation.
Perjury, calumny, injury, and revelation of secrets. The last mis-
demeanor is liable to be committed by physicians, surgeons, and other
officers of health; by apothecaries, midwives, and all other persons
who by their calling or profession, are intrusted with individual or
family secrets.
In the second class are:
Robbery; that is, the fraudulent taking away of an object which
does not belong to the person taking it. Robbery is either simple or
qualified." Qualified robbery is that which is accompanied by ag-
gravating circumstances, such as have been before stated.
(6
Fraudulent bankruptcy; swindling; breach of trust; contravention
of the regulations concerning gambling houses, pawnbrokers' shops
and lotteries, which, since 1830, have been prohibited, unless they
1
APPENDIX A.
xxiii
have had for their object the encouragement of art or charity;
hindrance to the freedom and honesty of public auctions; violation of
the regulations relative to manufacturers, commerce, or art, to which
class belong strikes of workmen for higher wages, and lastly, misde-
meanors of quartermasters-general, and other agents of the government
for the purchase and distribution of provisions, forage, &c.
Destruction of property, or injuries to the same, to which class
belongs incendiarism.
BOOK IV. POLICE OFFENSES AND THEIR PUNISHMENTS.
In contraventions, the animus or criminal intention is not considered;
the punishment is regulated solely by the nature of the act and its
results.
The code divides contraventions into three classes: the first being
punishable with a fine of from one to five francs, inclusive; the second
by one of from six to ten francs; and the third by one of from eleven
to fifteen francs.
Imprisonment can also be imposed for a term not exceeding five days,
according to circumstances.
PENAL CODE OF PRUSSIA. (Straf-Gesetzbuch.
The remarkable code lately promulgated in Prussia, although
founded on the French Code Pénal, differs from it in many important
particulars. The Prussian code has been in force only since the 1st of
July, 1851. It is the product of twenty-five years of legislative labor.
Six complete and elaborated projects were presented and discussed in
the years 1827, 1830, 1843, 1845, 1847, and 1851. If the desired goal
was not sooner arrived at, it was not for want of profound investiga-
tion, sixty commentaries and criticisms having been written on one
single project, that of 1830. The reason of this delay is to be found
partly in the slow movements of the legislative bodies, and partly in
the long-continued differences on the question, whether a new code
should be made, or whether the former laws should be revised.
The criminal law of Prussia, before the reform, was contained in the
general Prussian law of 1794, the Landrecht. By a cabinet order of the
king, dated 28th January, 1826, the revision of the penal laws was
decreed; and on this occasion it was expressly remarked that no new
body of laws was intended, but that it was only meant to give the
former laws a thorough examination, and, according to the result, to
improve and complete the existing system. The minister of justice,
Graf Von Danckelmann, protested against this plan of revision, and
declared that the general Landrecht could be revised in all its parts,
xxiv
THE PENAL CODE.
except the criminal law, for which a new code was required. The
king yielded to this opinion, and decreed by a cabinet order of 14th
November, 1826, the plan purposed by the minister, that a commission
should be appointed to prepare a new penal code for the whole State
of Prussia.*
In order to hasten its preparation, a second commission was ap
pointed in 1838, called Immediat Commission, consisting of the
ministers of justice and of the interior, and of several members of
the council of State. The proceedings of this commission were to be
more prompt than those of the ordinary commission, and it was to
stand in immediate relation with the plenum, or general assembly.
The project of the year 1843, the revised project of 1845 (the latter
under the direction of the celebrated Savigny, then minister of justice),
and the project of the year 1847, were the result of the labors of this
commission. The last project was laid before the legislative chambers
on their first meeting, under the celebrated patent of the 3d February,
1847. It was discussed during twenty-six sittings, in a committee of
ninety-nine members, named for the purpose, and a report made to the
assembly. The general discussion commenced on the 17th January,
1848, and was interrupted in the sitting of the 6th March, by the
revolution.
In the year 1850, the project, remodeled by the minister of justice,
Herr Simons, was again taken up, with alterations rendered necessary
by the reformed organization of the judiciary. In the first and second
chambers the project was adopted without discussion, and promulgated
as law the 14th April, 1851, to take effect the 1st July following.
Of all the German penal codes, that of Prussia most resembles the
French, both in form and principle. It consists of three hundred and
forty-nine articles, or rather paragraphs, and is divided into three
parts, preceded by introductory prescriptions. These last are founded
on the preliminary provisions of the penal code of France, and are
almost a literal translation of them. Offenses are divided into crimes,
misdemeanors and contraventions. A crime is punishable with death,
hard labor, or "confinement" for more than five years. A misde-
meanor, with confinement for less than five years, "imprisonment” for
more than six weeks, or a fine of more than fifty thalers. A contraven-
tion, with imprisonment for a term of less than six weeks, or a fine not
exceeding fifty thalers.
*In the Rhenish provinces the French penal code was in force till the adoption
of the new Prussian code. The commission had great difficulty in satisfying these
provinces, in which, besides, the French system of penal procedure was also in
force.
L
1
APPENDIX A.
XXV
PART I. GENERAL PRINCIPLES CONCERNING PUNISHABLE ACTS.
The Prussian code recognizes but five kinds of punishment: death,
hard labor, confinement, imprisonment and fine. Civil death is abol-
ished, and civil degradation is pronounced only in very grave cases.
Death is inflicted by decapitation. The execution is private and in
an enclosed space. Two members of the court judging in first instance,
the public prosecutor, or his substitute, a clerk, and one of the superior
officers of the prison, must be present. Notice of the execution must
be given to the municipal council of the place where the execution is
to take place. This body must send twelve persons of consideration to
act as witnesses. A member of the same religion with the condemned,
and his counsel, must be admitted. Other persons can obtain admis-
sion only on particular grounds; the law, however, neither gives those
grounds, nor does it name the magistrate by whom the permission is
granted.
Hard Labor is imposed either for life or for a term of from two to
twenty years. Those condemned to it are employed, as in the bagnes
in France, at such labor as is fixed by law in the prisons prepared for
this purpose. They are not capable during their term of punishment
of performing any civil act; and, in case of holding property, a curator
is named for them who administers their affairs. They are deprived
of their civil rights, by which is understood the following: loss of
right to wear the Prussian national cockade; incapacity to maintain or
receive public office, honors, titles, orders, or decorations; loss of
nobility; incapacity to be a juryman or elector, or to perform any other
political act; incapacity to make oath as a witness or appraiser, to
serve as witness to a public document, to be guardian or member of a
family council, with the exception of guardianship of the offender's
own children, with the approval of the family council, or other council
of guardianship; and lastly, the loss of right to bear arms or to enter
the army.
Confinement. This punishment is incarceration in fortresses, or other
places named for the purpose, with employment at different trades, for
the most part chosen by the prisoners. It cannot exceed twenty years.
Imprisonment. Those condemned to this punishment are confined in
a prison, and are employed according to their capacities and circum-
stances. Its duration is from one day to five years.
Fines. A fine of less than one thaler cannot be levied. In case of
insolvency of the condemned, the judge can change the fine to im-
prisonment; a fine of from one to three thalers counting as one day's
imprisonment. Under such circumstances, it can never exceed four
years.
xxvi
THE PENAL CODE.
The Prussian code, like the French, does not prescribe general con-
fiscation of property as a punishment, but only a special one of those
objects which are the fruits of the crime or misdemeanor, or which
were used, or intended to be used, for the commission of the offense.
Besides the entire privation of civil rights, there is a temporary
interdiction of them of from one to ten years, with the effects before
mentioned. The temporary interdiction of the right of holding public
office, however, cannot exceed five years.
The surveillance of the police, introduced into this code, has also
been adopted from the French. The residence in certain places can be
interdicted to a convict; and he is subjected to visits from the police
as often as they deem it advisable. Those who are punished and
placed under the surveillance of the police on account of theft, robbery,
or of receiving stolen goods, are not allowed to leave by night either
their domicile or lodging, without permission of the police. A foreigner,
instead of being placed under the surveillance of the police, is ejected
from the Prussian territory.
All condemnations to death, hard labor, or confinement for more
than five years, must be published in the official organ of the govern-
ment, in the district in which the punishment is pronounced.
Offenses receive a much milder punishment by the Prussian, than by
the French code; and the principal difference of the effects of punish-
ment is, that the system of penalties dishonoring the person is not
adopted in the former, and that only in certain very grave cases depri-
vation of civil rights and consideration is pronounced. Capital punish-
ment appears in much fewer cases; the punishments of civil death, exile,
transportation, and détention, do not exist.
Attempts (Versuch). The second chapter treats of attempts to com-
mit crimes or misdemeanors, and establishes a theory which is almost
literally copied from the French Penal Code. An attempt is only
punishable when the same is manifested by acts which constitute a
commencement of execution, and when the consummation is hindered
only by circumstances independent of the will of the author. The
attempt to commit a crime is punished in the same manner as the crime
itself, except that the judge, in fixing the measure of punishment which
is within the limits allowed him by the law, is permitted to take into
consideration that the crime was not consummated. The only other
exception to the rule is, in case of an attempt to commit a crime, which,
if perpetrated, would be punishable by capital punishment or hard labor
for life; in which case the penalty must be changed to hard labor for at
least ten years, with surveillance of the police. The attempt at a
misdemeanor is only punished in the cases specified. by the laws; the
punishment is, in such cases, the same as for the misdemeanor itself,
with the above mentioned modification in respect to judicial discretion.
APPENDIX A.
xxvii
Complicity. The third chapter treats of the participation in a crime
or misdemeanor. The following questions are decided:
Who shall be punished as author or accomplice of a crime or mis-
demeanor?
What punishment must be pronounced in the different cases?
How is he to be punished who takes part in a punishable action after
the same has been committed?
The following persons are punishable as the accomplices of a crime
or misdemeanor:
Whoever excites, seduces, or persuades the doer, by gifts or
promises; by threats, abuse of authority or power; by intentional
provocation or other means.
Whoever has advised the commission of a crime or misdemeanor;
or has procured weapons, instruments, or other means, which have
served for the deed, knowing that they were to serve in the perpetra-
tion of a punishable action; or has, knowingly, given aid in the acts
which have either prepared, facilitated, or completed the offense. The
punishment is, in this case, whether the offense is consummated, or only
attempted, the same for both the principal and accomplice; but the
judge can, in applying the law, have regard to the degree of the co-
operation. In the case of capital punishment, or hard labor for life,
when the part taken was not essential to the accomplishment of the
crime, hard labor for a term of years must replace these penalties,
and when, besides, extenuating circumstances exist, the punishment is
imprisonment of from two to ten years.
Whoever excites to a crime or misdemeanor, by speeches at public
places or meetings, or by writings, prints, or other publications, which
are sold, distributed, propagated, exposed or posted, is considered and
punished as an accomplice, when the instigation has resulted in a crime
or misdemeanor, or a punishable attempt at either. If no result has
followed these provocations, imprisonment of at most one year is
generally pronounced.
A person who, after the perpetration of a crime or misdemeanor,
knowingly assists the perpetrator to escape punishment, or to secure
the advantage of the offense, is punishable by a fine of at most 200
thalers, or imprisonment of at the utmost one year. When a person
does this with the intention of saving a blood relative, either ascendant
or descendant, brother, sister, or spouse, from punishment, he incurs
no penalty. Nevertheless, in the case when this assistance is given in
consequence of an agreement made before the commission of the offense,
a common Complicität exists, even for a relation of the grade just
mentioned.
The third chapter closes with a provision which is not found in many
other codes. Whoever has received notice of a project of high treason,
55
xxviii
THE PENAL CODE.
counterfeiting of money, murder, robbery, kidnapping, or a crime
dangerous to the life of man, when the hindering of the same is still
possible, and fails to denounce the fact to the authorities, or to the
person threatened, is punishable with imprisonment for a term which
can be extended to five years, when the crime is committed or at-
tempted.
Exemption from or mitigation of punishment. In the fourth chapter,
which, logically, is connected with the first on punishments, are enu-
merated the grounds which exclude or mitigate punishments. In the
three following cases, there is neither a crime nor misdemeanor com-
mitted, although the external conditions of one exist: 1st. When the
author at the moment of the deed, is insane or idiotic, or when
the freedom of the will is hindered by force or menace; 2d. When the
deed is an act of legitimate defense, to repulse an attack on one's self,
or on another, even in cases when, from terror, fright, or horror, the
limits of defense are exceeded; 3d. When the author has not com-
pleted his sixteenth year, and it is proved that he has acted without
discrimination. In this latter case the judge decides whether he shall
be intrusted to his family, or sent to a house of correction. If sent to
the latter, he remains there as long as the administrators deem it
necessary, but not beyond his 20th year. When a youth, under 16
years, has committed a crime, and it is shown that he acted with
discernment, no other punishment but imprisonment can be pro-
nounced against him. If the crime is punished in ordinary cases with
death or hard labor for life, the penalty is changed to imprison-
ment from three to fifteen years. In all other cases the judge is
authorized to diminish the minimum of the ordinary punishments;
he can never exceed the half of the ordinary maximum. The im-
prisonment for such young persons is in separated wards within the
ordinary prisons.
Limitation. The prosecution of crimes and misdemeanors is subject
to limitation. The limitation for crimes punishable with death is thirty
years; for those crimes whose punishment is loss of liberty for more
than ten years, the limitation is twenty years; and for those of which
the penalty is a milder punishment, the period is ten years. Those
misdemeanors which are punishable with more than three months' im-
prisonment as a maximum, cannot be prosecuted after five years, nor
others after three years.
The term of limitation begins with the day that the crime or misde-
meanor is committed. A crime or misdemeanor which can only be
punished on the complaint of a private individual-for example, theft
from a near relative-cannot be prosecuted after the lapse of three
months, which commences with the time of knowledge of the offense.
When it is interrupted by a judicial examination which leads to no
1
APPENDIX A.
xxix
result, a new term of limitation commences with the latter judicial act.
Whoever escapes by flight from the examining magistrate cannot avail
himself of the new limitation. The law defines precisely the interrup-
tion of the limitation, and embraces therein every motion or other act
of the public prosecutor, as well as every decision and every other
act of the judicial magistrate, concerning the opening, continuation or
termination of the investigation or incarceration of the accused. No
limitation is admitted for punishments pronounced by a definitive
judgment.
When the culpability of an action depends either on matters peculiar
to the person of the offender, or to the one against whom the action is
directed, or, in particular circumstances, such action is not to be
counted as a crime or misdemeanor, when the doer at the time of the
deed was ignorant of such relations.
repe-
Cumulation and repetition of offenses. The first part closes with the
5th chapter, concerning the cumulation of several offenses, and the
tition of offenses. The first occurs when the same action includes the
characteristics of several crimes or misdemeanors, in which case that
law is applied which inflicts the severest punishment, or when, by
several independent actions, several crimes or misdemeanors are com-
mitted. In the last case, all punishments to which the criminal is
subjected are to be cumulated in one, with the following modifications:
When there are several punishments of loss of liberty for a less term
than for life, the term cannot, for crime, exceed twenty years, and for
misdemeanors ten years. If the punishments are of different kinds,
the severest is to be pronounced, and the milder are, by a fixed rule,
reduced to the same kind. One year's imprisonment counts as eight
months' confinement, and one year's confinement for eight months' at
hard labor. In case of the cumulation, imprisonment, which by law
cannot in ordinary cases exceed five years, can be extended to ten
years.
Punishment is aggravated in case of the perpetration of a crime or
misdemeanor for which an individual has been already condemned by
a Prussian court of justice. In such case, the maximum of the ordinary
punishment is increased, but by not more than one-half, and it cannot
exceed incarceration for twenty years. The term of five years for
imprisonment can, in this case, be augmented. This augmentation does
not occur when ten years have elapsed since the time when the punish-
ment of the crime last committed has been inflicted or remitted. When
the deed, in the first or last case, or in both, consists merely in being
accessory to a crime or misdemeanor, or to the attempt to commit
the same, the same augmentation of severity of punishment is to be
observed.
XXX
THE PENAL CODE.
PART II. CRIMES, MISDEMEANORS, AND THEIR PUNISHMENTS.
This part contains very numerous special provisions concerning the
nature and the mode of prosecution of punishable actions, excepting
offenses against the police regulations. The offenses considered are
the following:
High Treason. High treason is an undertaking against the king,
tending to kill, imprison, or deliver him to the enemy, or to render him
incapable of governing, or forcibly to alter the succession to the throne
or the constitution, or to incorporate the territory of Prussia, in whole
or in part, with a foreign state, or to wrest a portion of its territory
from the kingdom. The punishment in these cases is death. If the
action is only prepared, and not commenced, its punishment is hard
labor; or, when there are mitigating circumstances, confinement.
A Prussian who excites a foreign government to war against Prussia,
suffers, if war follows the same, capital punishment and civil degrada-
tion. The giving assistance by a Prussian citizen to the enemy during
a war with Prussia is punished with hard labor.
Insult to the King. Insult to the king is either by words or deeds;
the latter is punished with death, or, in certain cases, with hard labor
for from ten to twenty years.
An offense committed against one of the members of the royal family
is punished with hard labor for from five to twenty years.
The manifesting of a want of reverence for the king, by words, writ-
ings, prints, or drawings, is punished with hard labor for from five to
twenty years. If against a member of the royal family, with imprison-
ment for from one month to three years.
Acts against Allies. A Prussian, in or out of Prussia, or a foreigner
during his stay in Prussia, who commits an action against one of the
German States or rulers, which, if exercised against Prussia or its king,
would be high treason, is punished with hard labor of from two to ten
years. The same punishment is pronounced when the action is directed
against another state with which reciprocity in such cases is guaranteed
by law or treaty.
The insulting by words the sovereign of a German State, or of
another state, when reciprocity is assured for such cases, is punished
with imprisonment of from one month to two years. The prosecution
in the last case is made on the proposition of the foreign government.
The insulting the foreign agent accredited to the Prussian courts is
punished with from one month to one year's imprisonment.
Offenses to Political Rights. An offense against the exercise of
political rights is committed by the undertaking forcibly to dissolve
the representative body, to obtain the adoption of a resolution, or
1
APPENDIX A.
xxxi
forcibly to eject or exclude a member of the chambers, or to prevent
his going to the same, or voting, or to falsify an electoral act. The
punishment is hard labor or imprisonment.
The buying or selling a vote is punished with imprisonment of from
three months to two years.
Resistance to Legal Authorities. By resistance to the authorities is
understood the provoking another to disobey the laws or orders of the
magistrates; the exciting a soldier to breach of discipline; the justify-
ing a crime or misdemeanor; the attack on a magistrate, or resistance
to the same in the exercise of his functions; lastly, the forcing a magis-
trate to do or omit an official act. The punishment is fine or impri-
sonment. The law includes, under this head, the favoring the escape
of a prisoner, and the conspiracy of prisoners; in the latter case impri-
sonment must be pronounced.
Offenses against Public Order. By an offense against public order is
understood the illegal formation of armed bodies; the taking part in a
secret association, or associating to prevent the execution of the laws;
the exciting citizens to hatred and contempt for each other, or for the
institutions of the state, or for the orders of the authorities; the insult-
ing a person while in the exercise of a political or religious right; the
usurpation of a public office, uniform, decoration, or title; the destroy-
ing or removing of public ordinances which are posted in public places;
the breaking official seals; the false accusation of a witness or juror;
emigration without permission, when thereby the person seeks to avoid
military service, or practicing the profession of inducing to emigrate;
the seducing Prussian soldiers to desert, or seeking to induce Prussian
subjects to enlist in a foreign army; vagrancy, or the wandering over
the country without having, or attempting legitimately to obtain the
means of subsistence; beggary, when with threats, force, weapons, or
false representations; and the making beggars of children, or persons
who are intrusted to the care or authority of the persons so doing; the
leading a life of drunkenness, gambling, and idleness, which prevents
the person from giving support to those who are dependent on him;
the refusal by one who receives support from a public establishment
for the poor, to perform the labor suitable to his strength which is
allotted him. The case of a person who, after the loss of his means of
support, has, within a term fixed by the police, procured no other
means of subsistence, and cannot prove that, after taking all necessary
pains, he has not been able to procure the same, is also included in this
title. In all these cases the punishment is imprisonment; or, in rare
cases, fine; or both.
Counterfeiting Money. By counterfeiting money, is understood the
imitating of the coin or paper money of Prussia, or of any foreign state;
xxxii
THE PENAL CODE.
or the altering of moneys in order to give them the appearance of
higher value, or to give to uncurrent money the appearance of current.
This crime is punished with hard labor of from five to fifteen years,
and with surveillance of the police.
The same punishment is incurred by him who procures false or falsified
money, and either imports the same or puts it in circulation; whoever
receives such money, and, after recognizing its spuriousness, passes it,
or seeks to pass it, as genuine, is punished with imprisonment of not
more than three months, or fine not to exceed 100 thalers.
Perjury. Perjury is committed by him who knowingly swears falsely
in civil or criminal suits. The punishment is more severe in the latter
than in the former case, as the penalty of hard labor for a term of
twenty years can be pronounced for perjury in a criminal suit.
An appraiser who knowingly confirms a false statement with an oath,
is punished as a false witness.
Testimony on oath, is not required for the members of those religious
societies where the oath is forbidden, or for those who have already in
the same suit made oath, or when a sworn magistrate gives official
affirmation, making appeal to his oath of office. Whoever gives know-
ingly to a public officer a false affirmation, which is received instead of
an oath, is punished with imprisonment of from three months to one
year, and the judge can even pronounce temporary interdiction of civil
rights. Subornation of perjury is punished with condemnation to
hard labor, which can extend to five years.
This chapter closes with a prescription not to be found in any other
code: Whoever, through negligence, makes a false oath, can be con-
demned to imprisonment for one year. This punishment is not pro-
nounced when the individual revokes, formally, his false testimony
before he has been denounced or prosecuted, and before any injurious
consequences have resulted from it.
False Informing. Whoever addresses to the public authorities a
denunciation against a person on account of a punishable action is, if
the denunciation is made falsely, and with intent, punished with impri-
sonment of not less than three months, and according to the discretion
of the judge, with temporary interdiction of civic rights. In this case
the sentence is copied from the records, and published in a journal
designated by the judge.
Offenses against Religion. Offenses against religion are public
blasphemy, or the calumniating of a Christian church, or of another
authorized religious society; mockery of their doctrines, institutions,
or customs, or contempt of the same; misbehavior in church; and
injury to objects destined to the service of religion. The offender can
be condemned to imprisonment of at most three years.
1
APPENDIX A.
xxxiii
•
Whoever takes from the guardianship of those entitled to it, the
body or part of the same of a deceased person, or disturb graves or
tombs, or dishonors them, is punished with imprisonment of from one
month to two years; and when this is done with a view to gain, the
interdiction of civic rights is pronounced in addition.
Offenses in regard to Civil Rights. Whoever substitutes, or inten-
tionally changes, a child, or in other ways changes or suppresses the
fact of the birth, marriage, or death of a person, is punished with hard
labor not to exceed ten years.
Offenses against Good Morals. Offenses against good morals, are
bigamy, adultery, incest, bestiality and sodomy, rape, seduction effected
through false representations, professional prostitution contrary to police
regulations, pimping, seduction of a girl between fourteen and sixteen
years, public indecency, the sale, distribution, or propagation of immoral
writings, prints, pictures or images.
Bigamy is punished with hard labor, which cannot exceed five years.
The same punishment is pronounced against the person who knowingly
marries one already married, and the priest or magistrate who performs
the ceremony of marriage for them.
Adultery is only punished when divorce ensues on account of such
offense, by imprisonment from four weeks to six months, which reaches
equally the accomplice. The plaintiff can, during the suit for divorce
or the criminal process, desist from the prosecution, in which case the
accomplice is also set free.
Incest between parent and child is punished, in the former by hard
labor, which cannot exceed five years, and in the latter, after the age
of sixteen years, with imprisonment from three months to two years.
Incest between parents-in-law and children-in-law, between brothers
and sisters, or half-brothers and sisters, is punished with imprisonment
from three months to two years; and, when there are aggravating cir-
cumstances, with temporary interdiction of the exercise of civil rights.
Step-children are exempt from punishment when under sixteen years.
Tutors, ministers of religion, and teachers who are guilty of indecent
actions towards those minors who are intrusted to their charge; magis-
trates who are guilty of the same conduct towards persons against
whom they are directing prosecutions, or who are committed to their
surveillance, and officers, physicians, or surgeons who are employed
in prisons or public hospitals, guilty of the same offense towards those
under their charge, are punished with hard labor, not to exceed five years.
Bestiality and sodomy, are punished with imprisonment from six
months to four years, and with temporary interdiction of civil rights.
Rape, is a forcible satisfaction of lust on another without will or
intelligence, or on a child under fourteen years. If death follows, the
xxxiv
THE PENAL CODE.
punishment is hard labor for life; otherwise, for a term not exceeding
twenty years.
The seduction of a female by false representations is punished with
hard labor for five years.
A common prostitute, if unlicensed, is punished with imprisonment
which cannot exceed six weeks, and, if a foreigner, can be expelled
from the kingdom. The judge can order that the person so sentenced
be put in a house of correction, where she remains so long as the local
police judge necessary, for a term not exceeding one year.
Pimping, or the habitual or professional pandering, whether for gain
or not, by mediation, or providing opportunities, is punished with impri-
sonment for not less than six months, and the being placed under the
surveillance of the police. In aggravated circumstances, the imprison-
ment is changed to hard labor, which can be extended to five years.
The seduction of a child of from fourteen to sixteen years, is pun-
ished, on the complaint of the parents or tutor of the child, with impri-
sonment of from three months to one year.
Public indecency is punished with imprisonment from three months
to three years, and, if the judge thinks fit, with temporary interdiction
of civic rights.
The sale, distribution, or propagation of indecent writings, prints, or
representations, is punished by a fine of from ten to one hundred thalers,
or with imprisonment from fourteen days to six months, and the con-
fiscation of the corpus delicti.
Slander and Libel. Whoever publicly or by writing insults another,
is punished by fine, which can amount to three hundred thalers, or to
imprisonment, not to exceed six months. When a person insulted
replies immediately with insults, the judge is empowered to pronounce
a milder punishment against one or both, or he can acquit them.
Criticisms, blaming scientific or artistic works, warning superiors
against their subordinates, and denunciations of official acts, or sen-
tences of a magistrate, and analogous cases, are punishable when it
appears from the form or circumstances that there was an intention to
do injury.
Physicians, and all persons who betray secrets which were confided
to them on account of their position, are punished by a fine which can
amount to 500 thalers, or imprisonment of at most three months.
Calumny is the asserting or spreading false imformation concerning
another, which may expose the same to the hate or contempt of the
public. If the calumny is public, the punishment is imprisonment from
one week to one year. When, however, the defendant proves the truth
of his assertions, which he has the right to do, by all means that are
admitted for criminal cases, he is not punished, except when it appears
from the form or circumstances that he had the intention to do injury.
APPENDIX A.
XXXY
The punishment for libel and calumny is only pronounced on the
demand of the injured party, who can renounce his accusation at any
moment. This complaint can be instituted by husbands in the name
of their wives, and by fathers in the name of their children. In all
these cases, the sentence of condemnation is published at the cost of the
person condemned.
Dueling. The principals in a duel, and the person who carries the
challenge, are punished. The seconds, witnesses, physicians, and sur-
geons are not punishable, and are not bound to denounce the duel to
the authorities. The punishment for dueling is confinement from two
months to twenty years, according to the consequences of the duel and
the circumstances of the case. The bearers of the challenge are acquitted
when they have earnestly endeavored to prevent the duel.
Offenses against Life. An action by which the life of a person is
taken is a murder, when performed with intent to kill, and with pre-
meditation; when without premeditation, but with intent, it is man-
slaughter. Murder is punished by death, manslaughter by hard labor
for life. The last is punished with death when committed on a parent
or grandparent, or when committed in order to overcome resistance to
the commission of a crime or misdemeanor already commenced, or
to escape from being taken in the act of committing a crime or misde-
meanor. The punishment is changed to imprisonment of not less than
two years, if the crime is committed under the influence of excitement
caused by grave insult to the person or to his relations.
A mother who kills her illegitimate child during or immediately after
birth, is punished with hard labor from five to twenty years. All
others who participate in this crime are punished according to the
general rules concerning murder or manslaughter.
A mother who intentionally procures abortion is punished by hard
labor of not more than five years, and the accomplices receive equal
punishment.
The exposure of a child under seven years, or an infirm person, or
the abandoning of such persons by those who are intrusted with them,
is punished with imprisonment of not less than three months, and hard
labor of not more than ten years, in case death ensues from it.
Negligence, which has for result the death of another, is punished
with imprisonment from two months to two years. When the author
of such negligence is bound by his trade or profession to particular
care and prudence, he may, besides the above punishment, be deprived
of the exercise of such trade or profession.
The interring or removing of a dead body, without notice to the
authorities, is punished by a fine of at least 200 thalers, or imprison-
ment of at most six months. The mother who inters or removes her
56
xxxvi
THE PENAL CODE.
!
illegitimate new-born child, without giving notice to the authorities, is
punished with imprisonment which can reach two years.
Corporeal Injuries. The code distinguishes between light and severe
injuries inflicted on another. The first are punished by imprisonment
of at most two years, and when with premeditation, the imprison-
ment may be increased to three years. "Severe injuries" are such as
cause sickness or incapacity to work for more than twenty days, or
mutilation, or privation of speech, sight, hearing, generative power,
or intelligence. In such cases, hard labor for fifteen years can be pro-
nounced against the author, and when the death of the injured person
follows, the punishment can be increased to twenty years.
Corporeal injuries, inflicted through negligence, are punished by fine
of from 10 to 100 thalers, or imprisonment of at most one year, on
the complaint of the injured person; or, in case of a grave injury, on the
demand of the public prosecutor.
Whoever undertakes the care of an internal or external malady, or
to perform the functions of a midwife, without being legally authorized
to do so, for money, or contrary to a prohibition of the police, is pun-
ished with a fine of from five to fifty thalers, or imprisonment for at
most six months. This punishment is not applied, when, in a case of
urgent necessity, the assistance of a duly licensed physician is impossi-
ble. These last who, in case of imminent danger, refuse their assistance
without sufficient ground, are punished by a fine of from 20 to 500
thalers. The midwife who omits to call in a physician, in case of a
dangerous delivery, is punished by a fine of not more than 50 thalers,
or imprisonment of not more than three months.
Architects who, in the erection of a building, endanger the lives of
persons entering or passing, by negligence or ignorance of the rules
of their profession, are punished with imprisonment from six weeks to
six months, or a fine of from 50 to 300 thalers. In case of repetition,
they may be deprived of the right of exercising their profession.
Offenses against Personal Freedom. A crime or misdemeanor against
personal freedom, is man-stealing, or the artful or forcible abduction
of a person in order to put such person in a helpless condition, or to
carry the same into slavery or bondage, or into foreign service on land
The punishment for this is hard labor from five to twenty
or sea.
years.
The artful or forcible abduction of a person under sixteen years, for
gain or lust, is punished by hard labor from two to fifteen years; when
committed without such intention, if of a minor, with imprisonment of
not less than one year, if of a woman, for cohabitation or marriage,
hard labor from two to ten years; in case of consent of the female,
she being unmarried and a minor, but without the consent of her
parents or tutor, with imprisonment from three months to two years.
APPENDIX A.
xxxvii
The sequestration of a person, or the deprivation of personal free-
dom, is punished with imprisonment from three months to five years;
it is changed to hard labor from two to fifteen years when the action
has for result grave personal injuries, when the loss of liberty has been
for more than a month, or when against a parent or grandparent. The
provisional detention of a person, in case of the commission of a crime,
or of grounded suspicion of the same, immediately after the commis-
sion, is not regarded as sequestration; so, also, of the confinement of
a person on account of insanity.
The compelling, or seeking to compel, to the commission of a crime-
or misdemeanor, by threats, in words or writing, is punished by im-
prisonment for not more than one year.
Theft and Embezzlement. Theft is the taking the personal property
of another, with the intention of appropriating the same unjustly. The
punishment is imprisonment of not less than one month, and temporary
interdiction of the exercise of civil rights. In case of extenuating
circumstances, the imprisonment can be reduced to one week; and, in
case of aggravating circumstances, the condemned can be placed under
the surveillance of the police.
A more severe punishment-not less than three months' imprison-
ment is pronounced in the following cases:
When agricultural instruments and animals employed in agriculture,
or gathered crops, are stolen from fields, meadows or gardens; when
wood, prepared for burning or for building purposes, is stolen from the
forest, or from the place of deposit; when a person who serves for
wages, or for board, steals in the house, or a workman steals in the
shop of the master; lastly, when a tavern keeper, or servant of the same,
steals the effects of a lodger, or when the lodger steals while in the
house.
The highest punishment-hard labor, not to exceed ten years, and
surveillance of the police-is pronounced in the following cases:
•
When objects destined to the service of religion are stolen; when
theft is committed, either by night, or by two or more persons in an
inhabited house; when theft is committed in a building or enclosed
place, by means of breaking in, or climbing over, or when false keys
are employed to enter; when traveling effects, or objects which are
destined to be transported, are stolen on a public street, or in a build-
ing of the post or railroad, by cutting away or loosening the objects
serving to secure the same, or by the use of false keys; when objects are
stolen from a weak-minded person, or child under twelve years; when
the thief, or one of the accomplices is armed; when two or more per-
sons co-operate as instigators or participators, who have associated for
the continued exercise of robbery or theft; lastly, when objects ex-
posed to loss at a fire or inundation are stolen.
xxxviii
THE PENAL CODE.
THE
Whoever has already been condemned twice or oftener on account
of theft or robbery, is, in case of conviction for simple theft, condemned
to hard labor of at most fifteen years, and in case of an aggravated
theft, it can reach twenty years. This augmentation of punishment is
not applicable when ten years have elapsed since the time when the
punishment of the crime or misdemeanor last committed is expiated or
remitted.
Embezzlement is the alienation, pawning, consumption, or removal
of the personal property of another by those to whom the same is
intrusted with the obligation of restitution, or by those who have found
or accidentally become in possession of the same. Embezzlement to
the prejudice of children or spouse is not punished. A theft or em-
bezzlement from parent or grandparent, stepparents or stepchildren,
brother and sister, adoptive parents, tutors, or guardians, are only
prosecuted on the complaint of the injured party.
Robbery and Extortion. A robbery is a theft accompanied by force,
or violence exercised by a thief seized immediately after the act, in
order to save the stolen objects. It is punished in ordinary cases by
hard labor from five to fifteen years, and surveillance of the police; if
there are aggravating circumstances, the punishment is from ten to
twenty years, or for life. Those which subject the author to the first
punishment, are the bearing arms, the co-operation of several persons,
as originators or assistants, and the committing the crime on a public
place or road. The severest punishment is incurred when the robber
has been already sentenced by a Prussian court on account of this crime;
when a person is tortured or mutilated, or deprived of an organ, or
deprived by ill treatment of ability to labor for a longer term than
twenty days.
The punishment of extortion is imprisonment for not more than three
months, and temporary interdiction of civic rights; surveillance of the
police can also be added. The imprisonment is changed to hard labor
from two to five years, when the threatened crime is murder, arson, or
causing inundation. This offense is regarded as robbery when the
menace is accompanied with danger to life or limb, or with violence.
Receiving Stolen Goods. The purchase, taking in pawn, or secreting
of objects known to be stolen, embezzled, or procured by means of
another crime or misdemeanor, or the favoring, for gain, of persons.
who have committed such offenses, is punished by imprisonment of not
more than one month; if there are extenuating circumstances, it can
be reduced to one week, and temporary interdiction of the exercise of
civil rights. The judge can also condemn to the surveillance of the
police. The receiving of goods obtained by robbery, or the protection
afforded to robbers, is punished by hard labor from two to ten years,
and the being placed under the surveillance of the police.
1
APPENDIX A.
XXXIX
Professional receiving is punished by hard labor from two to fifteen
years, which penalty is also pronounced against those who have been
condemned, once or oftener, for the same crime by a Prussian court.
Fraud. The fraud criminally punishable is the injury to the property
of another, with intent to gain, by leading into error, by making false
allegations, or disguising, or concealing the truth. The punishment
for this crime, and for the attempt, is a fine from 50 to 1,000 thalers,
imprisonment from one month to five years, and temporary interdiction
of the exercise of civic rights. When there are extenuating circum-
stances, the penalty can be reduced to one week's imprisonment, or to
a fine of five thalers; if there are aggravating circumstances, provided
for by the laws, the minimum of imprisonment is three months. The
severest aggravation (which can be punished by hard labor from two to
ten years, and by fine of from 100 to 2,000 thalers), is the setting fire
to insured property,* or the wrecking a ship to gain the insurance on
it or its cargo.
Breach of Trust. A breach of trust is punishable, where tutors,
guardians, administrators of charitable institutions cause injury, inteu-
tionally, to the persons confided to them, and when brokers, or any of
those persons who have a particular license from the authorities to carry
on their business, knowingly do injury to those whose affairs they have
charge of in the business confided to them. The punishment is im-
prisonment of not less than three months, and temporary interdiction
of the exercise of civil rights; in case of its being done for gain, a
fine of from 50 to 1,000 thalers is added.
Counterfeiting Documents. Whoever falsifies a document, or counter-
feits one, and makes use of the same to deceive, is punished by hard
labor of at most five years, and a fine from 50 to 1,000 thalers.
The same punishment is awarded against him who, contrary to the
will of the signer, makes a declaration or obligation over a signature
with intent to cause him prejudice, and against him who knowingly
makes use of a false or counterfeit document. If there are aggravating
circumstances, such as the falsification of public papers, acts or regis-
ters, wills, and bills of exchange, the penalty is hard labor from two to
ten years, and fine from 100 to 2,000 thalers.
The falsifying or counterfeiting of stamped paper, or postage stamps,
is punished by imprisonment from three months to five years.
The falsifying or counterfeiting a passport is punished by imprison-
ment from one week to three months, and, of an official certificate, by
imprisonment from two weeks to six months.
*The Prussian code differs from other codes in the appreciation of this offense, which
by them is declared a separate crime- arson.
xl
THE PENAL CODE.
Bankruptcy. Fraudulent bankruptcy is the suspension of payment by
merchants and tradesmen, ship-owners, and manufacturers, when they
have secreted or set aside the whole or a part of their fortune; when
they have declared debts and engagements which do not exist; when
they have failed to keep their commercial books, with the intention of
doing injury to their creditors; or when, for the same purpose, they
have secreted or destroyed their books. The punishment is hard labor
from two to fifteen years; when there are extenuating circumstances,
it is reduced to imprisonment for not less than three months.
Simple bankrupty is punished with imprisonment not to exceed two
years. It consists in extreme negligence in conducting business, and in
the manner of living; without, as in fraudulent bankruptcy, the inten-
tion to deceive.
Punishable selfishness. Punishable selfishness includes a long list of
offenses, of which the principal are: usury; professional pawnbrokery;
professional gambling; the keeping gambling houses; the undertaking
a lottery without permission of the authorities; fishing in the waters
of another; hunting or shooting on the grounds or district of another;
lastly, the opening of sealed letters, or documents, without having the
right to do so.
In all these various cases, the penalties are imprisonment or fine.
Injuries to another's property. Whoever intentionally and unjustly
injures or deranges the property of another, is punished with imprison-
ment, not to exceed two years; and if there are extenuating circum-
stances, by a fine not to exceed 50 thalers. When there are aggravating
circumstances, on account of the nature of the damaged objects, the
minimum of the imprisonment is fourteen days, and in some cases, a
maximum of two months. When several persons are associated for
this purpose, they are punished by hard labor from two to fifteen years,
Offenses of a generally dangerous character. Crimes and misde-
meanors of a generally dangerous character are: arson; the destruction
of buildings by the use of powder, or other explosive substances; the
causing an inundation; injuries to railroads, telegraphs, or other means
of communication; the poisoning of springs, &c., &c.
In all these cases, if loss of life is a consequence, the punishment of
death is pronounced; when not, the penalty is hard labor for life, or
for a term of years; when without criminal intention, the punishment
is imprisonment.
To this kind of offense belongs the non-fulfilling, in time of war, of
an engagement to deliver subsistence for the army, or of provisions for
relieving distress, in times of scarcity. The punishment for which is
imprisonment for not less than six months; and, in cases of simple
negligence only, not to exceed two years.
:
APPENDIX A.
xli
Offenses by public officers. A public officer who receives a bribe or
other advantage, or who stipulates to violate the duties of his office,
or perform an act which he is duly bound to perform gratuitously, is
punished in the first case by hard labor from two to ten years; or if
there are extenuating circumstances, by imprisonment for not less than
six months, and temporary interdiction of civil rights; in the latter
cases, by imprisonment of not more than six months, or fine. The
officer can also be temporarily suspended from his office.
Besides the case of bribery, there are other high grades of abuse of
authority; the intentional injustice of a judge; the employing of coer-
cive measures against an accused in penal procedure, in order to pro-
voke a confession or declaration; the execution of a punishment which
is contrary to the laws; the misuse, or falsification of public documents,
by those who give authenticity to the same. In all other cases, im-
prisonment alone is pronounced.
PART III. CONTRAVENTIONS.
This last part of the Prussian code is divided into four chapters. The
first treats of the punishment of contraventions in general. The second
treats of contraventions in respect to the security of the State, and public
order. The third, of contraventions in respect to personal security,
honor, and freedom; and lastly, the fourth chapter treats of offenses
of this denomination against property.
In general only such actions are to be punished as contraventions
which are so declared by the laws, or the regulations of the authorities.
The legal punishments are: the police imprisonment, which consists in
simple deprivation of liberty of not less than one day or more than six
weeks; and fine from ten silbergroschen* to fifty thalers, and the con-
fiscation of certain objects. In case of insolvency of the offender, the
fine is changed to imprisonment; one day counting for from ten silver
groschen to two thalers.
The attempt at a contravention is not punishable.
The limitation for contraventions is in three months, with the excep-
tion of the case of insult, which extends to six months.
Contraventions in respect to the security of the State, and of public
order, are punished by fine or imprisonment. To this class belongs a
long list of offenses, which consist in actions without criminal intention,
which threaten the well-being of the State; such as the secretly collect-
ing of arms or munitions, the founding of certain associations without
the assent of the authorities; the refusal of assistance in case of public
danger or necessity; the disturbance of Sunday and religious or public
holiday; the making indecent noises in the streets; the public ill treat-
*Twenty-three cents-Thirty silbergroschen make one thaler.
xlii
THE PENAL CODE.
ment of animals; lastly the carrying on of games of chance on the
public places. The same punishment is pronounced for beggary, and
against the person who compels children to beg; whoever remains in
a tavern or place of public amusement longer than is allowed by the
laws, after being directed to leave by the proprietor or police officer, is
punished by a fine not exceeding five thalers. The landlord is punished
with a fine, not to exceed twenty thalers, or imprisonment, not to exceed
fourteen days, when he does not seek to hinder his guests from keeping
late hours.
Insult is punished, on the complaint of the person insulted, with a
fine, not exceeding fifty thalers, or imprisonment, not exceeding six
weeks; in the cases of disturbing security, convenience, cleanliness,
and quiet in the public streets or squares; in cases where the danger
to public security is great, as in the case of the preparing or sale of
poisons or medicaments; the manufacture and having in possession
inflammable or explosive substances, the opening of cellars, pits, or
cisterns on the public streets without taking the proper precautionary
measures; the non-observance of the public regulations respecting the
reparation or destruction of dilapidated buildings. The same punish-
ment is pronounced against the person who enters the dwelling of
another without right, and refuses to depart when summoned to do so;
him who sets dogs on persons, who throw stones or other hard or foul
objects at others.
Whoever, by an action without criminal intention, injures or threatens
to injure the property of another is punished with a fine, not exceeding
twenty thalers, or imprisonment, not exceeding fourteen days; in par-
ticularly aggravating circumstances the maximum of fifty thalers or
imprisonment for six weeks can be pronounced.
FEUERBACH'S PENAL CODE FOR BAVARIA.
(Strafgesetbuch.)
Bavaria, in common with other German states, was for a long time
governed, as to its law of crimes and criminal procedure, by the cele-
brated statutes of Chas. V, known as the Carolina Criminalis. The
preparation of this system of law was commenced in 1498, and the
system itself was completed and adopted as law in 1532. This code
was not so much devoted to criminal law as to procedure, being called,
in its preface," a simple instruction for unlearned judges to teach them
how to proceed in criminal cases." It, however, gave definitions of
the graver crimes, and prescribed their punishment.
The Carolina Criminalis continued in force for a long time. Modi-'
fications were, however, introduced, differing in the different states
composing the empire, until at last a great number of penal codes grew
APPENDIX A.
xliii
into existence, even the smallest states having codes of their own. The
Carolina Criminalis, the source and origin of all, has thus, though
never formally repealed, become virtually abolished..
The most important of the German codes which are above described
as having grown up to replace the Carolina Criminalis, is a code pre-
pared for Bavaria by the famous German jurist, Feuerbach. It was
originally promulgated in 1813. It is no longer in force in its original
form; but as it became the parent of many systems of penal law
adopted in the neighboring states, it is here described as it originally
stood, disregarding the subsequent modifications of penal law which
have been made in, but are peculiar to, Bavaria.
A distinguishing feature of Feuerbach's code is the distinctness of
his definitions of crimes. He arranged in distinct classes all kinds
of criminal actions, distinguished each class from others by fixed defini-
tions, marked strict boundaries to the sphere of each crime, and
employed language which is simple and free from ambiguity. Some
of the codes framed in other states upon the basis of Feuerbach's, are,
however, regarded as superior to his in execution, having less the style
of a compendium than his, and being composed in language more
appropriate to a law.
•
Another peculiar feature is the theory of punishment adopted. The
principle which underlies the system is, that punishment ought to be
more severe in proportion as the temptation to commit the offense was
powerful; so that in general the punishment shall involve a greater
evil than the offender would have experienced by resisting the tempta-
tion. This view leads to some results which, to those trained under a
different system, appear unadvisable; thus, for example, a thief who
had a powerful and preponderating temptation to steal, is more severely
punished than a parricide who acted without such inducements and
temptations as influenced the thief.
The Bavarian code (of Feuerbach) is divided into two parts; the
first treats of crimes and misdemeanors; the second of procedure.
Part I is divided into three books.
The first book is divided into five chapters, and gives the general
provisions concerning crimes and misdemeanors. The topics of these
chapters are: Punishable actions, and their various degrees of punish-
ment; the perpetration of crimes, criminal intention, and the authorship
of crimes; criminal attempts, criminal participation, and crimes result-
ing from culpable negligence; rules for proportioning of the punishment
to the crime and its attendant circumstances of extenuation or aggra-
vation; and the grounds for remitting punishment.
The second book treats of crimes and their punishments, in detail.
They are classified as crimes against individuals and crimes against the
State. In the first class are: crimes against human life; personal in-
57
xliv
THE PENAL CODE.
juries and maltreatment; theft, embezzlement, robbery and extortion;
injuries done to property; fraud; and breach of trust. In the second
are high treason, offenses against the king or the royal family, and
other crimes against the security or existence of the State.
The third book treats of misdemeanors both against persons and the
State, and of the punishments which are provided for them. To mis-
demeanors against individuals belong the lighter offenses against the
person; and such as theft, embezzlement, personal injuries under cer-
tain circumstances and certain lower grades of breach of trust. To
misdemeanors against the State belong offenses compromising the
honor of the State; resistance to authorities; offenses against public
peace; against public credit, and against public property; and lastly,
the particular misdemeanors of public officers.
In this code, as in the French Code Pénal, punishable actions are
either crimes, misdemeanors, or contraventions. Crimes are all offenses,
which, by their nature and gravity, incur the penalties of death, con-
finement in irons, hard labor of the first or second degree, imprison-
ment in a fortress, deprivation of public office, or declaration of inca-
pacity for all offices or honors of State or trust. Misdemeanors are all
offenses, committed with or without criminal intention, which are pun-
ishable with imprisonment, flogging, fine, and other lighter punishments.
Contraventions are actions or omissions, which, although not causing
injury to the rights of the State or the subject, are prohibited or com-
manded under certain penalties, because they endanger public order,
and compromise public security. Lighter offenses, which are referred
by particular laws to the examination of the police authorities, who also
have the punishment of them, come likewise under this head.
From these definitions, it is easy to perceive that the legislator re-
cognizes an offense as punishable only when it is in violation of an es-
sential right of the individual or the State. The later codes have,
however, abandoned this fundamental principle of the Bavarian code.
The punishment of death is either simple or aggravated. The mode
is decapitation. In the first case, the criminal is led to the place of
execution, clad in a grey blouse, and bare headed, with a tablet on the
back and breast, inscribed with the name of the crime. In the second,
the criminal, dressed and labeled in the same way, is exposed for half
an hour in the pillory.
Confinement in irons is for life, and is accompanied by civil death.
The labor of the prisoner is determined by the State. The prisoner is
fastened by a chain to a heavy iron ball.
The punishment of hard labor, of the first degree, is either for a defi-
nite term of from eight to twenty years, or for a term not fixed by the
sentence, in which case, after ten years, on evidence of repentance or
improvement, the punishment is remitted. A judge can never sen-
APPENDIX A.
xlv
tence to hard labor for life. The second degree of hard labor consists
of the prisoner being confined in another and separate establishment,
where he is treated in a milder manner, and his punishment is less
laborious than in the first.
Imprisonment in a fortress is of three kinds. The first is substituted
in particular cases for imprisonment in irons; the second, for hard labor
of the first degree; and the third for hard labor of the second degree.
The first and second degrees of this punishment, as well as of other
punishments, may be augmented by confinement in dark dungeons,
diminution of food, flogging, and exposure in the pillory.
In case of flogging, the number of lashes is named in the sentence,
and cannot exceed fifty; and they can only be given on the declaration
of a physician that they will not endanger the criminal's life.
Imprisonment for not exceeding two years takes place in a local pri-
son, or in a fortress, where there is no compulsory labor, but where the
quantity of food can be diminished.
Whoever causes the condemnation of a criminal to be made a re-
proach to his relatives, may be subjected to a penalty of from eight to
fourteen days' imprisonment.
Those persons are considered as authors of a crime who assist in its
execution by direct bodily strength of exertion; who render an assist-
ance without which the crime could not have been consummated; or
who excite and provoke other persons to its commission.
A "complot" is different from these cases, and consists in two or
more persons joining with another, for a common interest, in the com-
mission of a crime; and who bind themselves, by promises of mutual
assistance, to co-operate in its execution.
Participation in the execution of a crime incurs the same penalty as
the crime itself, although the ringleaders receive the severest punish-
ment.
An accomplice is he who knowingly and intentionally participates
in a crime resolved on by another, whether by words, acts, or omissions.
to act, and even when such participation was not so necessary but the
crime could have been committed without it. The law recognizes and
determines three grades of complicity, according as the co-operation
or participation is of more or less importance in the commission of a
crime. The punishment of an accomplice is regulated by that of the
perpetrator. In the third grade of the crime of complicity, we
observe one of the peculiarities of the theory of Feuerbach. The
persons who are included in this grade, and who are liable to its
penalty, are those who fail to denounce a crime or a misdemeanor, of
which they have knowledge, and who, though not public officers, do
not hinder or prevent a crime so far as is possible, even by the use of.
xlvi
THE PENAL CODE.
physical force. The receiving of stolen goods, or the favoring of the
escape of a criminal, is also punished as a second degree of complicity.
Criminal attempt consists in having the intention to commit a crime,
and having done anything in preparation or towards the perpetration
of the same. It is either proximate, distant, or aggravated. A proxi-
mate attempt is when the criminal is present, and is taken at the com-
mencement of the action by which the crime or misdemeanor would
have been immediately consummated. A distant attempt is when the
offender has only assisted in certain acts which are regarded as merely
preparatory to the crime. An aggravated attempt is when the attempt
constitutes in itself a crime or misdemeanor. The punishment in this
case is more severe than the punishment of a proximate attempt, or of
the crime independently, even when the punishment for this last is
more severe than that laid down for attempt. Criminal attempt of
the two first grades is not punished, as in the French code, with the
same penalty which is attached to the crime itself; but it is increased
or diminished in proportion as it is distant or proximate to the actual
commission of the crime.
As has been already stated, a leading peculiarity of Feuerbach's sys-
tem is his theory as to the meting out of punishments.
When the law has not defined the precise grade of punishment, it
must be determined by the judge, always in observance of the follow-
ing principles: The punishment must be increased in proportion as
the reasons for obeying the law are numerous and important; as the
obligations violated by the offender are great and serious; as the crimi-
nal is in a condition clearly to know his motives for the commission of
the crime; as the hindrances to the commission of the crime were
great, or as the criminal was instigated by his own impulses, or by
external circumstances; as the offender, by the continued practice of
bad manners, and the performance of loose actions, has become intract-
able and disposed to crime; and as the lusts and passions manifested
in the commission of the crime were dangerous and malicious. On the
other hand, the punishments are decreased when the offender, having
an opportunity to commit a greater crime, restrained himself volunta-
rily to a smaller one; when he takes pains to prevent the consequences
of the crime, or voluntarily to repair the injury done; when he volun-
tarily delivers himself up to justice; when at the first or second
examination he confesses his crime; or lastly, when he has led to the
detection of other criminals, or furnished means or opportunity for
their seizure.
Though the crime is proven against the accused, nevertheless, if in
an important matter of fact, there is an essential point of the evidence
defective, a milder punishment than that prescribed by law is in-
flicted.
1
APPENDIX A.
xlviť
The commission at the same time of several crimes is punished by
an accumulation of the penalties of all.
Repetition of a crime or misdemeanor is punished more severely
than the original offense. It exists when a person, after having under-
gone a punishment, repeats an offense similar to that for which he was
sentenced.
No punishment is pronounced against children under eight years of
age, insane persons, idiots, or persons who, from melancholy or other
grave mental affection, have lost the use of their judgment; those who
cannot judge of the consequences of their actions, nor be sensible that
a penalty is attached to them; those who, by reason of weakness caused
by old age, have lost the use of their judgment; deaf and dumb per-
sons, so far as they are not regularly instructed in their duties; those
who are in incurable ignorance, and have, therefore, regarded their
actions as allowable and not criminal; those who have committed a
criminal action under the influence of physical force which they could
not resist, or of bodily fear, such as menace against life; and, finally,
those who have resolved on committing a crime, and have executed it,
while in a confused state of mind or senses for which they were not
answerable.
No crime exists for defending one's self, nor for those who have.
assisted in such defense. The law provides for, and affixes penalties to,
those cases where the limits of legitimate defense are exceeded.
In general there is no limitation to punishments. If, however, the
criminal has not been prosecuted within a period fixed by the law, and
if, meanwhile, he has conducted himself irreproachably, he is declared
exempt from punishment.
The second part of this code is devoted to criminal procedure.
PENAL CODE OF SAXE-WEIMAR.
The penal code of the grand duchy of Saxe-Weimer dates from the
year 1838.
There were no great difficulties to the introduction of this code, nor
any important parliamentary discussions on the subject, it having been
founded on the codes of the other German states, which immediately
preceded it, and on the Prussian project. It is not without interest to
remark, that the code of this state, which numbers the population of a
second-rate city of the United States, commences with principles of
international law. It proclaims that not only the inhabitants of this
grand duchy, but also that the Saxe- Weimarers who have, in foreign
parts, committed an action which is high treason against the grand
duchy, or the ducal family, or on account of an action which is com-
xlviii
THE PENAL CODE.
mitted without the limits of the state, in order to defraud the laws of
the same, are subject to the prescriptions of this code.
A very original prescription of this body of laws is, that the punish-
ments are pronounced not only on account of violation of the letter, but
also on account of violation of the spirit of the law. All other exist-
ing codes forbid analogy in the interpretation of penal law, and admit
only the strict application of the text.
The punishments admissible in Saxe-Weimar, are: Death; confine-
ment in irons; hard labor of first and second degrees; confinement in
a fortress; infamy and degradation; flogging; imprisonment in a
fortress; fine. In the execution of these punishments, the same regu-
lations are observed as in the Bavarian code, already described. The
provisions of this code are so far copied from the Bavarian, throughout,
as to render further details unnecessary.
PENAL CODE OF BADEN.
This code was promulgated March 6th, 1845. It is divided into two
parts: the first treats of offenses and their punishments in general; the
second, of individual offenses and their penalties.
The division of offenses into crimes, misdemeanors, and contraven-
tions, employed in the Code Pénal, and most of the other codes of
Europe, is not adopted in that of Baden. Offenses are neither defined
nor graduated. The first article merely bears the title "punishable
actions," and provides that the commission or omission of an action is
only punishable when the law prescribes a penalty for the same.
There are two classes of punishments; criminal and civil.
The criminal punishments are: Capital punishment; hard labor for
life; hard labor for a term of not less than three nor more than twenty
years, and deprivation of office. The citizens of Baden who are sen-
tenced to hard labor, and those who are particularly dangerous to pub-
lic security, may, on coming out of prison, be placed under the surveil-
lance of the police for a term of from one to five years. An individual
receiving this punishment cannot leave his house, or place of residence
given to him by the authorities, over night, and is subjected to house-
searchings at the discretion of the police or judicial authorities.
The civil punishments are: Confinement in a house of correction or
fortification, from six months to two years; imprisonment; removal
from office with the capability of being restored again after three years;
loss of license to exercise certain professions; fine not to exceed, as a
rule, 1,000 guildens;* confiscation of certain objects, and judicial
admonition. Imprisonment can be aggravated in certain grave cases,
* The guilden is forty cents.
APPENDIX A.
xlix
by solitary confinement of not more than two months duration; by
confinement in the dark, not to exceed four days; short diet, of bread
and water, or bread and warm gruel, not longer than seven days, which
cannot be consecutive; lastly, by being put in chains for a period not
to exceed four weeks.
Attempts to commit crimes receive a milder punishment than com-
plete perpetration; and a distinction is observed between different
classes of attempts. If all has been accomplished necessary to the com-
summation of the offense, which, however, has been impeded by some
circumstance independent of the will of the criminal, the punishment is
considerably more severe than when this is not the case.
The originators of an offense are not alone those who have accom-
plished it by deeds, but those who have decided on, or incited to the
same. When the perpetration of the offense does not depend on the
influence of the counselor, however, he is punished less severely than
the perpetrator, but receives the same penalty as the accomplice.
An accomplice is he who knowingly facilitates or furthers the offense
of another. The punishment for this grade of guilt is less than for the
originator or perpetrator; the punishment of death is changed to hard
labor for life, or for a term of years; in all other cases the minimum of
the punishments inflicted on the ringleader, or the next lower grade of
penalty, is incurred. Rendering aid and comfort to a criminal after
the act, is punishable, regard being had in adjusting the penalty to the
importance and motives of the principal crime.
The system of aggravating and extenuating circumstances, which is
according to Feuerbach's theory, is interesting. The punishment is ag-
gravated in proportion as the reasons for committing the offense were
more numerous and important; as the obstacles and dangers in the way
of the execution were great; as the external incentives to the offense
were small or insignificant; and as the offender by his former man-
ner of living had manifested immorality and perversity. The punish-
ment is mitigated when the offender was not aware of the result of the
act or the extent of the punishment of the same; when led to commit
the offense either by necessity, persuasion, deceit, seduction, order, or
menace; when he was in a state of great mental excitement; when he
has led an irreproachable life; when, under the influence of repentance,
he has sought to hinder the injurious consequences of the punishable
action; and when he has himself given information of his offense to the
authorities.
There is no punishment for an offense committed when the exercise
of a free will or the knowledge of the penalty of the offense was want-
ing, or when in ignorance of the facts which make an action punishable,
or which increase the penalty of the same. Children under twelve
years old are not held accountable for offenses; those from twelve to
1
THE PENAL CODE.
sixteen years old are only punished when they have acted with discern-
ment, and then with a milder penalty than that inflicted on those of
riper years.
Self-defense, in case of imminent danger to one's life, or to one's
property, or defense of a near relation whose life is in danger, is not
punished when thereby an action is committed which in other cases
would receive punishment.
When several offenses are committed by the same party, the severest
of the punishments incurred is inflicted, with augmentation in propor-
tion to the nature and number of the offenses.
The term of limitation for those offenses which incur capital punish-
ment, or hard labor, is twenty years; for other offenses ten years; for
those offenses which are prosecuted on the demand of the injured party,
two years.
PENAL CODE OF AUSTRIA.
This code was promulgated by imperial patent, May 27, 1852. It
applies to all the states of the monarchy, with the exception of the
military frontiers. It was accompanied by laws defining the jurisdic-
tion of courts, and regulating some matters of procedure; also, by a
proclamation of the emperor, laying down principles to govern the
application of the penal code and accompanying laws. Provision was
made that from the day when the code should take effect, no offenses
should be prosecuted, other than such as were defined in the code;
except that for actions committed before that time, the code should
only be applied when the punishments prescribed by it were not
severer than those of the former law.
A great difference, both in system and classification, is to be remarked
between this and the other codes which have been given. The Aus-
trian code does not commence with preliminary and general principles,
but is divided into two parts, which contain the special laws on pun-
ishable actions, and their penalties. The first part treats of crimes;
the second part of misdemeanors and contraventions. The Austrian
code has thus adopted the classification of offenses employed in that of
France, although this classification is not recognized by any special
article.
PART I. CRIMES.
This part is divided into twenty-nine chapters, of the contents of
which the following is a compend:
Crime generally. The first thing to be sought for to prove the exist-
ence of a crime is criminal intention; it exists, not only when, before
or during the commission of the crime, the injury, which is the conse-
quence of the crime, was intended; but also when, owing to another
J
APPENDIX A.
li
evil intention, something was undertaken or omitted, in which the
injury caused by the same has resulted, or can easily result, as a con-
sequence of the action. No crime, therefore, exists when the actor is
totally deprived of reason, or when he commits the deed in a moment
of temporary insanity; when he is in a condition of complete drunk-
enness, or any other confusion of the senses; when he is under four-
teen years old; when, through error, he cannot see a crime in the
action; when the evil consequences have resulted from accident, negli-
gence or ignorance; or, lastly, when the aet resulted from compulsion by
superior force, or in the exercise of self-defense. The plea of self-de-
fense is only to be admitted when it is to be supposed, in taking into
account the person, time, place, kind of attack, or other circumstances,
that only the necessary means of defense were used, in order to repel
an unjust attack on life, liberty or property; or, that the bounds of
self-defense were exceeded under the influence of intimidation or fear.
No one can plead ignorance of this code.
The immediate criminal is not alone guilty of a crime, but also he
who, by command, counsel, instruction, or praise, prepares the offense,
or intentionally has rendered assistance towards the execution of the
same, or towards removing the obstacles to its commission; lastly, he
who has stipulated with the offender beforehand to give him criminal
assistance after the deed, or to participate with him in the gain arising
therefrom. Whoever, after the commission of the crime, and without
preliminary stipulation, gives assistance to the criminal, or divides the
spoils with him, is not equally guilty, but by those acts becomes guilty
of another and special crime. When the law on the press is violated,
the author, the translator, the publisher, and in case the offending pub-
lication is periodical, the editor, and generally all persons who have
co-operated to print or spread such publication, are guilty of the same
crime.
Criminal attempt is punishable when the criminal has committed an
action leading to the commission of a crime, which crime, however, was
hindered by some circumstances independent of the will of the author.
The punishment of attempt is, in all cases in which the law establishes
no particular exception, the same as for the consummated crime, in
which case, nevertheless, those extenuating circumstances allowed.
in the law are admitted. An attempt exists, also, when a person
endeavors to persuade another to a crime which he does not commit.
Crimes of the press, on the part of the author, translator, editor, and
publisher, date from the delivering the manuscript to be printed.
No one is answerable for his thoughts or internal resolutions, when
no external criminal action is undertaken, or nothing laid down in the
laws is omitted.
58
lii
THE PENAL CODE.
Punishment of crimes. These are the following:
Death-this is inflicted by hanging.
Confinement in a dungeon-" Kerker." There are two grades of
this punishment-the simple and the aggravated.
Simple Kerker, consists in confinement in a small space, without
being put in irons, and in subordination to the regulations introduced
for punishments. In aggravated Kerker, the criminal is chained by
the foot; and conversation with others than his keepers is only allowed
under particular and important circumstances. The punishment of the
Kerker is inflicted either for life or for a term of years. The term com-
mences only from the moment when no appeal from the sentence is pos-
sible. The punishment can be aggravated by diminution of food,
deprivation of bed, isolation (for not longer than one month uninter-
ruptedly), and solitary confinement in a dark cell (for not longer than
three days uninterruptedly).
Flogging with rods or whips. The flogging for youths, under eigh-
teen years old, and for women, is with the whip; for men, with rods.
The operation can only be executed after an opinion of the surgeon on
the power of endurance of the criminal. Nevertheless, this punish-
ment can never exceed thirty blows, which cannot be given in public.
Lastly, banishment after the expiration of the term of punishment.
The legal consequences of every punishment on account of crime are,
deprivation of all foreign and national decorations; the loss of all pub-
lic titles and academical honors; exclusion from the responsible publi-
cation of a periodical magazine or paper; loss of every public office or
service; if a minister of religion, deprivation of titles; loss of judicial
dignity of office, or profession of notary public, lawyer, attorney, or
barrister; and, lastly, loss of all pensions.
The surveillance of the high police is regulated by special laws. The
loss of nobility is connected with the punishment of death, and of
aggravated Kerker. To the latter also, is annexed incapacity, during
the term of punishment, to perform any legal act.
When a criminal has committed different crimes, which are the
objects of the same prosecution, he can only be punished for that crime
which has for penalty the severest punishment, regard being had, how-
ever, to the other crimes.
When an Austrian commits a crime in a foreign land, he is, neverthe-
less, punished according to the prescriptions of this code; and when he
has been already punished where the crime was committed, he receives,
if that punishment was less than laid down in the laws of Austria, the
additional punishment on his return.
The crime of high treason, or of counterfeiting the obligations, bank
notes, or coins of Austria, by a foreigner, receives the punishment laid
down in the code, when even committed in another country.
1
APPENDIX A.
liii
Aggravating circumstances. This code has here followed very closely
the theory of Feuerbach. The crime is greater in proportion as the
preparations to the same were more premeditated; as the injury caused,
or the danger connected with, the crime was greater; or more obliga-
tions were broken, and less precaution could have been taken against
the same. Besides these general aggravating circumstances, there are
the following special ones: When several crimes of different natures
are committed, or the same crime be repeated; when the criminal has
already been punished on account of a similar crime; when he has se-
duced others to the crime; when he has been the exciter, ringleader, or
author of a crime committed by several persons; lastly, when the
accused seeks to deceive the judge by making false allegations.
(6
Extenuating circumstances. These depend upon the person of the
criminal or on the nature of the offense. Those depending on the per-
son of the criminal, are as follows: When he is less than twenty years
old; when he is of weak intellect or grossly ignorant; when he has led
an irreproachable life before the commission of the crime; when he has
been induced to commit the crime by another, or has committed the
same under the influence of fear, or intimidation; when he has been
urged to the commission of the crime by violent mental excitement,
growing out of the ordinary feelings of man ;" when he has been
tempted, by good opportunity, to the commission of a crime suggested
by the imprudence of another; when he has been under the influence
of extreme poverty; when he has sought to repair the injury caused by
the crime, or to prevent further injurious consequences; when, at the
time of its perpetration, he could easily have escaped, or remained un-
discovered, and yet has informed against himself, and confessed the
crime; when he has led to the detection of other criminals, and has
furnished opportunity and means for their seizure; lastly, when he
has been imprisoned for a long term on account of unusual delay of
the preliminary proceedings for which he was not to blame.
The extenuating circumstances on account of the nature of the crime
are the three following: When the contemplated crime is not consum-
mated; when the crime is perpetrated with voluntary abstention from
the commission of greater injuries, for which there was opportunity;
and, lastly, when the damage resulting from the crime is small, or when
the injured person has received full reparation.
Application of aggravating and extenuating circumstances in deter
mining the punishments. Aggravating circumstances are only taken
into account, in so far as they are not accompanied by extenuating cir-
cumstances; just as extenuating circumstances are considered only in
as far as they are not accompanied by aggravating circumstances.
In case of aggravation, the nature of the punishment provided by
the law cannot be altered, nor the maximum penalty increased.
liv
THE PENAL CODE.
There is no aggravation of the punishment of death, or of imprison-
ment for life.
In case of extenuating circumstances, for the crimes of which the
duration of punishment is not fixed by law at more than five years,
the confinement can be modified to a milder grade, and the legal dura-
tion of the term can be reduced. This mitigation can even be pro-
nounced in favor of a guiltless family, when by a longer duration of
the punishment it might experience serious diminution of its means
of subsistence.
Different kinds of crime. Crimes affect either the common security,
in the unity of the state and in the public confidence, or they affect the
security of the individual in his person or in his property, liberty, or
other rights.
Without entering into the details of the different classes of crimes,
some peculiarities may be remarked.
High treason. The crime of high treason is committed when any one
injures or endangers the person of the Emperor, in body, health, or
freedom; or when a violent change in the form of government is
attempted; or when the separation of a part of the empire, or an
insurrection or civil war is aimed at.
High treason is committed when these actions are directed against
the existence, integrity, or security of the constitution of the German
confederation. The punishment for these crimes is death, which is
executed upon the authors, ringleaders, and accomplices; and which
is also incurred in case of an attack on the person of the Emperor,
when the result sought for is not attained. The intentional omission
to inform of a conspiracy, for this object, is punished with aggravated
Kerker from five to ten years, unless the information was withheld by
reason of near relationship to the criminal.
Whoever has become concerned in an association of persons guilty
of high treason, but who, nevertheless, through penitence, informs
against the members of the same, and exposes their statutes, intentions,
and undertakings, at a time when they are still secret, and when the
injury can be prevented, is not punished; and his secrecy is not vio-
lated.
Offenses against the sovereign. Offenses against the sovereign are
committed in cases of personal insult, public invectives, defamation or
derision, by prints or writings, or pictorial representations. The pun-
ishment in these cases is aggravated Kerker from one to five years.
When these offenses are committed against any other members of the
imperial house, the punishment is simple Kerker from one to five years.
Disturbance of the public peace. The crime of disturbance of the
public peace is committed by provoking others, by means of printing,
•
1
APPENDIX A.
Iv
:
writings, or pictorial representations, to contempt or hatred against
the person of the Emperor, the unity of the empire, the form of gov-
ernment, or the administration of the state; by the provoking, in like
manner, to disobedience, resistance, or insurrection against the laws,
ordinances, sentences of the courts, or orders of other public authori-
ties; by the refusal to pay taxes; and where it is sought to induce to
participation in these actions, or to take part in the same in any manner.
The punishment of these crimes is aggravated Kerker from one to five
years.
The same punishment is inflicted when the action which constitutes
high treason is undertaken against any state of the German confede-
racy, or the sovereign of the same; or against another foreign state,
or its chief, when, by law, or by particular conventions, this reciprocity
is guaranteed and legally published in the empire of Austria. In this
last case, when there are aggravating circumstances, the punishment
of aggravated Kerker from five to ten years can be inflicted.
Whoever seeks to discover circumstances in the military defense of
the state, or in the army, with the intention of giving information of the
same to the enemy; or whoever, in time of peace, discovers and betrays
the operations which the state has made for its security, is punished as
a spy, according to special military laws.
Sedition and riot. Sedition is the uniting of several persons with the
intention of offering resistance to the authorities. The criminal, in
such cases, is equally guilty, whether he takes part in the conspiracy
from the beginning, or afterwards. The punishment is Kerker, which
can reach twenty years. When, by such a conspiracy, resistance is
made to the authorities which requires extraordinary measures to
restore peace and good order, it is called riot. When, in this case,
martial law is proclaimed, the punishment of death is pronounced
against the rioters; in other cases the ringleaders and those exciting
to the riot are punished with aggravated Kerker from ten to twenty
years, and this punishment is also applied in case of a great degree of
malice and danger to life. The other rioters are punished with aggra-
vated Kerker from one to five years, and, when there are aggravating
circumstances, from five to ten years.
Counterfeiting. The crime of counterfeiting the bonds of the state,
or other public securities, or bank notes, is punished, for principals and
accomplices, with aggravated Kerker from ten to twenty years.
The
counterfeiting of coins is punished with aggravated Kerker from five
to ten years, and when there is particular danger or injury, from ten to
twenty years. When, nevertheless, the counterfeiting was obvious
to every one, the punishment is from one to five years.
lvi
THE PENAL CODE.
Crimes against religion. Among the cases of crimes against religion
are the inducing a Christian to renounce his religion, and the spreading
doctrines contrary to the Christian religion. The punishment for these
offenses is aggravated Kerker from one to five years, and when there
are aggravating circumstances, from five to ten years.
Bigamy. The punishment of bigamy is simple Kerker from one to
five years.
Extinction of crimes and punishments. A crime is extinguished,
either: By the death of the criminal; or, by his having undergone the
punishment of the same, with the reservation of the further conse-
quences which have been before mentioned; or, by pardon; or, by
limitation. The limitation for crimes punishable with Kerker for life
takes place after twenty years; for crimes punishable with Kerker from
ten to twenty years, after ten years; for all other crimes, after five.
years. The limitation is only admitted when the criminal no longer
possesses any advantage from his crime; when he has, as far as possi-
ble, made restitution; when he has not fled from the country; and,
lastly, when during the period of limitation he has committed no new
crimes which have death for penalty. After a lapse of twenty years,
aggravated Kerker from ten to twenty years can only be pronounced.
PART II. MISDEMEANORS AND CONTRAVENTIONS.
Punishments. The punishments for misdemeanors and contraven-
tions, by the Austrian code, are: Fine; Confiscation of certain objects;
loss of certain rights and privileges; imprisonment; arrest; flogging;
banishment from certain places; banishment from one of the crown-
lands of the empire; banishment from the monarchy.
The punishment of imprisonment is of two grades; by the first the
prisoner is confined in a prison without being put in irons, in which
case he can provide his own food, and can choose the labor in which he
is to be employed. The imprisonment of the second grade is called
aggravated. The prisoner in this case is not put in irons, but is only
subjected to the ordinary regulations of the prison concerning food and
labor. Besides these two grades of imprisonment, there is a so-called
"house arrest," which consists in the obligation, on the part of the
person so condemned, not to leave his house under any pretext, under
penalty of expiating the remainder of his term of "house arrest
in a public prison. The court can order a sentry to be placed before
the house. The Arrest is from twenty-four hours to six months.
""
Flogging of youths under eighteen years, and women, is inflicted with
whips; of others, with rods. The number of the blows cannot exceed
twenty for misdemeanors and contraventions.
Banishment from the monarchy can only be pronounced against
APPENDIX A.
lvii
foreigners. Banishment from a town or state is pronounced for a fixed
or uncertain time.
Imprisonment can be aggravated by diminution of food; hard labor;
deprivation of bedding, not oftener than twice a week; isolation, not
longer than fifteen days; solitary confinement in a dark cell, not longer
than twenty-four hours. Flogging is only permitted in case of repeti-
tion of offenses.
In general a penalty provided by the law cannot be changed-with
the exception that when the fine is beyond the resources of the person
condemned, or when, by the duration of the imprisonment, the property
of the prisoner or of his family can receive serious injury, in the first
case the fine can be changed to a proportional imprisonment; in the
second case the term of the imprisonment can be reduced to less than
the minimum term.
Circumstances which aggravate a misdemeanor or a contravention.
These are: Continuation of the punishable action for a long period;
repetition; serious danger to others resulting from the act; damage
caused by the same; relationship between the guilty person and the
one injured; seduction of youth or other honest persons; giving për-
nicious example to one's family; causing public scandal; the making
preparations for the criminal action, or removing obstacles to the exe-
cution of the same; authorship or ringleadership of a punishable action
committed by several persons; committing of several misdemeanors or
contraventions of different kinds; deceiving the judge by false state-
ments on the part of the accused; and, lastly, misdemeanors or con-
traventions committed against public decency, by a well educated or
"accomplished" person.
Circumstances which extenuate. These are chiefly the following:
Youth; weakness of intellect, and neglected education; former good
behavior; seduction; fright, or false idea of dignity; violent excite-
ment of mind; extreme poverty; non-consummation of the action;
taking less advantage than might have been taken from the action;
the voluntary abstention from causing greater damage; reparation
of the injury done; voluntarily bringing to light of the deed, and expos-
ing the accomplices to the same.
When several of these extenuating circumstances occur for the same
misdemeanor or contravention, and when there is reason to anticipate
an improvement of the guilty person, the imprisonment can be miti-
gated and the time diminished.
Classification. Misdemeanors and contraventions are either against
public society, public establishments, measures for public safety, or the
functions of public officers, or against the security of individuals, in
life, health, body, property, honor, and reputation, or other rights;
and, lastly, against public decency.
Iviti
THE PENAL CODE.
Extinction of Misdemeanors and Contraventions. For those misde-
meanors and contraventions which have for maximum punishment
arrest of the first degree, without aggravation, or a fine not exceeding
fifty guilders, the time of limitation is three months; when arrest of
the first degree, with aggravation, or a fine not exceeding two hundred
guilders, it is six months; and for all other misdemeanors and contra-
ventions, as well as all cases where loss of rights and privileges are
included in the punishment, the period of limitation is one year.
PENAL CODES OF SWITZERLAND.
The best Swiss codes, among those which nearly every canton pos-
sesses are: In the canton of Lucerne, the code of 1836; in Turgau,
that of 1841 (this code is copied from that of Baden); in Zurich, that of
1835; in Vaud, that of 1843; in Basle, that of 1821; in Berne, that
of 1843. The oldest codes of Switzerland as those of Argua, of 1804;
and the two codes of Saint Gallen; the Code Correctionnel of 1800, and
the Code Criminel of 1817; lastly, that of Tessin, of 1816.
These codes are founded, for the most part, on the penal code of
France, with modifications of the German jurists.
Most of the cantons have also codified their system of penal pro-
cedure. The punishments are milder, the penalty of degradation being
almost unknown.
PENAL CODE OF SARDINIA.
The penal legislation of this state is based on the French Code Pénal.
In 1839 the penal code now in force in Sardinia was promulgated, the
code of civil laws having been in force since 1837. The object of its
authors was, says the king, in the proclamation which accompanies it,
"the composition of a penal code which should be equal for all, and
based on certain principles which should furnish the magistrate the
rules suitable for his guidance in the application of the punishments;
in according to him, nevertheless, a discretionary power needed in
numerous circumstances which the law cannot provide for.”
Like the Code Pénal of France, a preliminary chapter precedes the
first book, which treats of punishments and general rules for their exe-
cution.
The second book treats of crimes and misdemeanors..
The third book treats of contraventions and their punishments.
It is in the system of punishments that it differs most from the French
code, the penalties of civil death and ignominy not being retained; the
interdiction of holding a public office being the only degrading punish-
ment. There are two new kinds of correctional punishments, the Con-
APPENDIX A.
lix
fino and local exile. There is also a simple detention for offenders of
tender years, or having little discernment.
The Confino consists in the obligation imposed on the delinquent to
dwell in a designated commune, distant one and a half myriametres at
least from the place of the commission of the misdemeanor, or from the
commune where the injured party resides.
By local exile, is understood the banishment from the commune in
which the person resides, for a distance of three myriametres from the
commune where the offense was committed, and from the domicile of
the injured party.
There is in this code a special category of accessory punishments,
not to be found in the French code; they are, the pillory; the apology;
the interdiction, or suspension of the exercise of an employment or
profession, business or art; the surveillance of the police; the submis-
sion and the admonition.
The apology consists in the avowal of his culpability made by the
delinquent before the judge, and the praying for forgiveness, and
the promising not to commit another offense.
The submission consists in the promise made before the judge either
not to commit again the action for which he is to be punished, or to
conform himself to what has been prescribed to him.
By the admonition is understood the censure of the judge pronounced
against a person, on account of illegal actions, words, or writings, and
the warning, that in case of repetition he will incur the severest punish-
ment laid down in the law.
There are some modifications of the French law in regard to compli-
city and attempt.
The perpetrators and the accomplices, without whose co-operation
the offense could not have been committed, receive the same punish-
ment; whilst the other accomplices incur penalties two or three degrees
lighter.
The attempt does not receive the same punishment as the consum-
mated offense, but the punishment is diminished from two to three
degrees according as the execution was more or less distant. This
principle is observed for crimes and misdemeanors.
When several crimes or misdemeanors are committed by the same
person, the principle is observed of accumulating all the punishments
when possible.
It is a peculiarity of this code, that it admits of no limitation for a
large number of crimes, such as high treason, parricide, poisoning,
homicide in certain cases, robbery accompanied by murder, and arson.
When, however, an individual guilty of any of these crimes, excepting
the two first, is arrested twenty years after the commission of the same,
59
lx
THE PENAL CODE.
the punishment for it is diminished by one degree. There is no limita-
tion after condemnation to death, or hard labor for life.
These are the principal points of difference between the penal codes
of Sardinia and of France. The special part resembles too nearly the
French code to require an analysis of it.
PENAL CODE OF RUSSIA.
In Russia the oldest collection of penal laws is contained in the
"Prawda Russkaja" of the year 1020. This law continued in force
till the general code, which was promulgated in 1649, by Alexis Michael-
ovitch, and called the "Uloschenie." As but a small portion of this
code was devoted to penal law, and that portion consisting of most
arbitrary prescriptions, a commission was named, about the beginning
of the year 1700, to prepare a radical reform of the criminal law, which,
under Peter the Great, was employed with great activity on this work.
The emperor promulgated on the 1st of May, 1846, the existing
penal code. The spirit of this code may be seen by the following
extract from the imperial proclamation that announced its promulgation.
"It was necessary to introduce order and clearness in the laws, in order
to guarantee the security and rights of my well-beloved subjects. For
this reason, We have caused general laws to be prepared, by which
operation, without leaving the fundamental cases of the national legis-
lation, the existing laws are completed and brought into conformity
with the social condition of the people, and the exigencies of usage; so
that all infractions may be specified in a more precise and satisfactory
manner than is done in the existing laws, without omitting their differ-
ent modifications or their aggravating and extenuating circumstances;
in short, that each misdemeanor shall have a fixed penalty or repression
analogous to its nature, and proportioned to its culpability, in order
to interdict, as far as is possible, arbitrariness in the judgment, and to
place the criminal under the direct action of the law alone.
“The penal code has been discussed and amended in a special com-
mittee, composed of the ministers of justice, the senators and attorney-
general, rectified after observations from all the other ministries and
administration, and finally examined by a commission taken from the
council of the empire, preparatory to being brought definitively before
the general assembly."
This code, called "Code of Capital and Correctional Punishments,"
holds the middle ground between a systematic code of penal law, and
a simple revised collection of the laws and statutes which had thereto-
fore existed.
Arrangement of the Russian code. It is divided into chapters. The
first chapter of this code treats of general principles. In this the co-
1
APPENDIX A.
Ixi
operation of the German jurists, who were intrusted by the emperor
with the labor, is very evident. The second chapter is devoted to
offenses against religion. The third treats of high treason and political
crimes. The fourth treats of resistance against the constituted autho-
rities. The fifth treats of prevarication of public functionaries. The
sixth treats of contraventions against the regulations concerning the
collection of taxes, and the military service. The seventh treats of
contraventions and transgressions against public order and the general
weal. The eighth treats of contraventions and misdemeanors against
life, health, honor and individual freedom. The ninth treats of contra-
ventions against the fundamental principles and laws of family. The
tenth treats of contraventions and misdemeanors against property.
Punishments. These are either capital or correctional. Capital pun-
ishments are those which admit of no possibility of amendment, or of
recovering the former social position. They are either privileged or
non-privileged. The first are only applied to the higher classes of sub-
jects.
The privileged capital punishments are death, hard labor, "colo-
nizing” in Siberia, and colonizing beyond the Caucasus. For the non-
privileged class, the first and fourth punishments are adopted equally;
but the second and third punishments are aggravated by flogging
and branding.
The correctional punishments for the privileged classes are two: 1st.
Temporary local exile in Siberia; for the non-privileged classes, tempo-
rary incorporation in a disciplinary regiment; 2d. For the privileged
classes, temporary local exile to other parts than Siberia; for the non-
privileged, confinement in a prison, with compulsory labor. The third
punishment is confinement in a fortress. The fourth, imprisonment in
a house of correction. The fifth, imprisonment in a jail. The sixth,
arrest for a short term. The seventh, reprimand by the judge, and
fine.
These punishments admit of various gradations. Thiss, a celebrated
Russian jurist, makes out from this code no less than forty-one kinds
of punishment.
Consequences of punishments. These are, either civil death, which
affect not only the criminal, but also his family; deprivation of par-
ticular privileged rights belonging to the condemned, according to the
class to which he belongs; lastly, loss of rights, which can only be
executed at a late period, such as the right to be elector or elected.
Besides these, there are certain accessory punishments, which can in
every case be inflicted in connection with the principal punishments,
religious expiation, confiscation, publication of the sentence, banish-
ment, surveillance of the police, and, lastly, solicitation for pardon
lxii ·
THE PENAL CODE.
By an imperial ukase of the month of April, 1846, the punishment
of the knout was abolished and replaced by the whip. Thirty lashes
count as ten blows of the knout, and ten to twenty blows of the knout
are replaced by fifty lashes.
The great rigor of this penal system lays in the power given the
judge to accumulate various punishments for the same case.
f
PENAL CODE OF TURKEY.
Another absolute State, Turkey, has also a code which was promul-
gated before the one just spoken of. It is one of the most curious that
exists, containing in fourteen small articles all the dispositions of penal
law for that country. It depends upon a kind of constitution or charter
called "Hatti Sheriff." The present sultan accords in this act equality
before the law, without any particular parliamentary right.
The code, which is the continuation of it, commences with the
recognition of the equality of all before the law. Besides this there
are no general principles laid down, the fourteen articles containing
fourteen special cases of punishable actions with their penalties. These
are the following: Capital crimes; high treason; libel; theft; bribery
(two articles); infidelity of officers and agents of government; refusal
of imposts; assault; want of respect to the government and its
agents; highway robbery and violence; conduct of masters towards
their subordinates; article 13 gives exemplary punishments of superior
officers of state who are guilty of abuse of their functions, and forbids
their being concerned in other business; and article 14 forms the con-
clusion of the code, and contains the maxim that all subjects are equal
before the law.
This code distinguishes two kinds of offenses, those of words and
those of deeds.
He who excites by words to revolt is punished with death;
He who by words or deeds injures another, is judged by the council
of justice in Constantinople, and the local councils in the provinces,
and punished with imprisonment, of long or short duration.
Theft is punished "because his Highness the Sultan has abstained
from stealing." The punishment of theft is restitution of the stolen
object, exile for a year, and, when the thief is a functionary of the
government, removal from office.
The accepting a bribe by a public officer is forbidden, because, as
the law adds, "all officers are sufficiently remunerated." The punish-
ment is removal from office and hard labor for three years. If the
officer is employed by the government, he is sentenced to the galleys;
and, if an officer of finance, is punished with five years at hard labor.
The persons who are charged with the receipts and payments of the
APPENDIX A.
lxiii
empire must render an account yearly, which must be revised by
the council of justice. In case of a deficit, the officer is compelled to
refund the same, and loses his office.
There are three kinds of authority: justice, exercised by the court;
Imans, police, exercised by the Mochirs, charged with the preserva-
tion of good order; and the authority of the Mouhassits, charged to
levy the imposts and to send them, at proper periods, to the minister
of finance at Constantinople. These three authorities must harmonize
with each other. In case of discord "the one in the wrong shall be
punished."
Those who refuse to pay the taxes on their property, are punished
with imprisonment; those who resist with weapons are punished with
hard labor for three years; if a wound is caused thereby, with hard
labor for five years, and to payment of the costs of healing the person;
if he dies, capital punishment is inflicted.
He who attacks another with weapons is punished with hard labor
for a year; if a wound is given, the penalty is hard labor for three
years, and if death follows, capital punishment is inflicted.
Robbery is punished with seven years hard labor.
Immodesty and insubordination are punished with "a penalty cor-
responding to the offense.”
Certain high officers, like the Moukassits, the Hakims, and the mili-
tary governors, receive "exemplary punishments" when guilty of in-
fraction of these laws.
This code is, as will have been observed, for officers of the govern-
ment rather than for individual subjects. As may be imagined, the
old usages and system of punishment continue in force with it. The
whole substance of it has been given.
PENAL CODE OF BELGIUM.
In Belgium, in 1848, a commission was named by the minister of
• justice, which was charged with the preparation of a new penal code.
In the following year a commission was named for revising the code of
penal procedure. The first named commission prepared a project, con-
sisting of two books, the one general, the other special, which was laid
before the chambers, and a commission named by them made a report
on the same, in the sitting of the 2d of July, 1851. The discussion was
adjourned to the next session, when the amended project was adopted.
A report on the same was laid, in 1852, before the senate, prepared by
the commission named by that body, which proposed some unimportant
modifications.
These reports, which include only the general principles of criminal
law, being the first book, differ from the French code, in respect to the
lxiv
THE PENAL CODE.
principles of the punishments and their effects, and also in respect to
criminal attempts, repetition, and accumulation of offenses and crimes.
They proposed the abolition of penalties of transportation, branding,
general confiscation, pillory, banishment, civic degradation, and mutila-
tion, in case of parricide; also the punishment of death for political
offenses, imprisonment in a fortress for twenty years taking its place.
Punishments. The following are the punishments proposed: Death;
hard labor for life, or for a term of from ten to fifteen, or fifteen to
twenty years; imprisonment in a fortress from five to ten or from ten
to fifteen years; confinement from five to ten years.
These four penalties are regarded as "criminal punishments."
The punishments which are not so termed are: Confinement for at
least eight days, and for police offenses not more than seven days; fine,
for crimes and misdemeanors, at least twenty-six francs; and for con-
traventions, from one to twenty-five francs; the special confiscation of
objects which have been used in the commission of an offense or have
been produced by the same.
Punishments which are common to correctional and criminal offenses,
are: Interdiction of certain civil and political rights, and the special
surveillance of the police, the effects of which are entirely analogous to
those of the French code of 1832.
The last modification of this report in the system of punishments, is
the introduction of the cellular system for those condemned to hard
labor and confinement in prisons, called maisons de force and maisons
de réclusion.
Attempt. An attempt, according to these reports, exists when the
"resolution to commit a crime or misdemeanor has been manifested by
any external acts, which form a commencement of execution of the
crime or misdemeanor, and which have only been suspended, or failed
in their effect, owing to circumstances independent of the will of the
author."
It is seen by this, that the law, unlike nearly all other systems, re-
cognizes only one kind of attempt, and makes no difference between
those which are direct or indirect attempts.
The Belgian law, unlike the French, does not inflict the penalty of
the consummated offense, but with the "punishment immediately in-
ferior to that inflicted for the crime itself." Nevertheless, for misde-
meanors, the rule of the French code is observed, the punishment being
inflicted only in cases specially laid down in the law.
Accumulation of different offenses. In respect to accumulation of
different offenses, the Belgian legislation has introduced the principle
of the Roman law, that the greater punishment suspends the lesser
(pœna major absorbet minorem), nevertheless, this principle is only ap-
APPENDIX A.
lxv
plicable to crimes; for in cases of several contraventions, the punish-
ment is pronounced for each; in case of cumulation of misdemeanors,
with one or more contraventions, the fine is paid for each, and the pun-
ishment of correctional confinement absorbs that of police imprison-
ment. In case of several misdemeanors, the punishments are inflicted
for each; nevertheless, without exceeding the double of the maximum
of the severest penalty. When, however, a crime, and one or several
misdemeanors or contraventions, are committed, the punishment for the
crime alone is inflicted.
The report to the senate proposed, as an amendment to this, that the
punishment pronounced for several crimes can be increased for five
years over the ordinary term of punishment, when one of these crimes
has for penalty hard labor, or confinement or réclusion. By "severest
penalty" is understood that of which the duration is the longest; when
they are for the same term, that of hard labor and reclusion are regarded
as severer than confinement in a fortress.
Complicity. Touching complicity, there are some important changes.
The accomplice to a crime being punished with a penalty immediately
inferior to the punishment which would have been pronounced if he
were the perpetrator of the same. The punishment for complicity to a
misdemeanor can never exceed two-thirds of the punishment of the
perpetrator. The following, however, are considered as accomplices to
a crime or misdemeanor: Those who have given instructions to commit
the same; those who have procured weapons, instruments, or other
means which have served for the offense, knowing that they were to
serve for the same; those who knowingly have aided or assisted the
author or authors of the crime or misdemeanor in the actions which
have prepared, or facilitated, or consummated the deed.
Repetition of offenses. Concerning repetition, there are but few
modifications from the French system. The punishment for the repeti-
tion of an offense is pronounced in case of a previous criminal or
correctional punishment. Whoever has been condemned to a criminal
punishment, or to a correctional imprisonment of more than six months,
and commits afterwards a misdemeanor, can be punished by a penalty
double to the maximum of the punishment of the misdemeanor. He
can also be condemned to surveillance of the police from five to ten
years.
THE PENAL CODE OF SPAIN.
Spain has had a penal code since the year 1848. Before that time
the penal legislation in this country was in a very confused state. The
oldest monument of Spanish jurisprudence is the so-called "Fuero
Juzgo," of the 8th century. This was followed by a compilation pub-
lxvi
THE PENAL CODE.
lished in the year 1265-
"Las Siete Partidas," and in 1556, a new
collection of Spanish laws was given out, entitled "Recopilacion de las
Leyes de Espana." This new penal code contains the principles laid
down in these compilations, expressed carefully and laconically; the
last compilation of the year 1808 being more particularly the basis of
it.
The circumstances which aggravate or extenuate a crime are especi-
ally enumerated in this code, which is a peculiarity of it worthy of
particular remark—the aggravating circumstances depend generally
on grounds personal to the criminal. The judge, when these occur,
can condemn to a punishinent equal to the maximum, but not over, as
in the French code.
Circumstances which Aggravate an Offense. These are the following:
When the offender is an ascendant, descendant, brother, or sister, or of
the same grade of relationship by marriage, or spouse of the injured
person; when the offense has been committed in consequence of bribe,
promise, or recompense; when with premeditation, craft, fraud, or dis-
guise; when with abuse of power or trust, or employment of means to
render the injured person helpless; when with usurpation of the character
of a public officer, if in order to commit another offense; when commit-
ted on the occasion of a fire, shipwreck or other calamity; when with the
help of armed men, or of those who can assure impunity for the time
being; when by night, or in isolated places; when with offense against
the authorities or their residences, or in a house of worship, or conse-
crated place; when with contempt for the consideration due to the
injured persons, on account of their dignities, age, or sex, or in their
house; when by means of force, false keys, or escalade, or with pro-
hibited weapons. Lastly, circumstances analogous to the above named
are included in this category.
Extenuating Circumstances. These are the following: When the guilty
person is under eighteen years of age; when he had not the intention
to cause all the evil which he has produced; when he was provoked or
menaced by the injured party; when he avenges an injury or insult to
him or his relations; when in a state of inebriation which is not
habitual to him, and which does not date from before the project to
commit the offense; when in a state of anger or great mental excite-
ment.
Cases where no Punishment Occurs. From these cases are to be dis-
tinguished those in which there is no punishment.
Are not punished: children under nine years of age; children be-
tween the ages of nine and fifteen years, who have acted without
discernment; those who are attacked in their honor, property, or rela-
tions, and defend the same. The condition in this last case is, that the
1
APPENDIX A.
lxvii
attack be unprovoked, and that the limits of defense be not exceeded;
those who are excited to the same by an irresistible power peculiar to
themselves, or by an invincible fear of a great injury; and whoever
performs a duty or executes a legal order.
Punishments. The punishments of this code are: death; loss of
liberty; degradation; fine.
The endeavor to render the punishments divisible, according to the
theory of Bentham, and, where the nature of the punishment allows,
to establish as many grades as possible, is characteristic to this code.
Capital punishment is executed in public on a day which is neither
a feast day of the church nor of the nation. The criminal is clad in a
black mantle, and drawn in a cart to the place of execution, accompa-
nied by a public crier, who repeats the sentence in a loud voice; the
manner of execution is by the garotte, or strangulation by means of
the tightening of an iron band, which passes around the neck; it is
aggravated for the parricide and for the regicide; in the last case the
criminal is mounted on an ass, and led to the place of execution; he is
clad in a yellow mantle and cap, both spotted with red. The execution
of the regicide takes place at the same hour of the day as the commis-
sion of the crime. After the execution, the body is exposed till one
hour before nightfall. The body is given to the family, but not to the
wife of the criminal, if she is with child—nor, in such case, is the seu-
tence even communicated to her.
The fine must correspond to the means of the person condemned. In
case of insolvency, one duro (dollar) counts as one day of imprison-
ment.
Attempt. Criminal attempt is a direct commencement of execution,
by external acts, the realization of which is hindered by causes inde-
pendent of the will of the author; the punishment is two degrees
inferior to that of the perpetrator.
Complicity. Accomplices are those who co-operate in the execution
of a punishable action, by acts simultaneous or anterior to the offense;
and those who give asylum to a criminal, or co-operation to his flight,
when he is not a relation. In these last two cases an exemption is
admitted in favor of near relatives of the criminal. The punishment
of the accomplice is one grade lighter than that of the principal
offender.
Political crimes. By an ordinance of the month of April, 1852, the
provisions of the penal code concerning political crimes, and concern-
ing the competency of courts for the trial of offenses of the press, were
altered. The jury is abolished for all kinds of political offenses, and the
correctional courts decide on the same in first instance, and the royal
court of appeals in second instance. Exceptionally, a jury decide
60
lxviii
THE PENAL CODE.
in affairs of the press, but it is a newly organized jury, which is com-
posed of the notables, and those paying the greatest taxes. Misde-
meanors against the king are punished with imprisonment from one to
six years, and with fine of from 20,000 to 60,000 reals. The person
condemned for the same is declared incapable of holding office, or of
wearing a decoration. A misdemeanor against the royal family is pun-
ished with imprisonment from six months to two years, and fine from
10,000 to 30,000 reals, and with temporary suppression of functions,
honors, and decorations. Misdemeanors against the security of the
state, or public order, are punished with imprisonment from one month
to three years, and with fine from 5,000 to 25,000 reals. Misdemeanors
against the king, the royal family, religion, and the security of the
state, and against foreign sovereigns, are judged by the supreme court,
which consists of at least nine members.
Want of space has prevented the commissioners from giving in this
place, what seems desirable to complete this account of foreign codes,
viz, an analysis of the more complete of the systems of statute law
of crimes, which are in force in other American States and in England.
Brief notices of the principal statute books containing these, are, how-
ever, to be found in the next following appendix.
APPENDIX B.
A CATALOGUE
OF
AUTHORITIES.
No attempt is here made to give anything like a complete bibliogra-
phy either of the law of crimes, or of prison discipline. The object
of the article is to indicate the sources from which the views embodied
in the Code were drawn; and, with the exception of a few works upon
prison discipline for which the inquiry made by the commissioners was
unsuccessful, it embraces only books in the library of one of the mem-
bers of the board, which were actually consulted and used in the
compilation of the work.
It will be observed that only works specially devoted to subjects
connected with crimes and punishments are mentioned. It is scarcely
necessary to say that in addition to these the great body of English
and American reports and statutes have been extensively examined,
upon almost every portion of the Code; and that many treatises not
reckoned among books of the criminal law have also been consulted
upon collateral topics.
Addington (William).
An Abridgment of Penal Statutes; which exhibits at one view
the offenses and the punishments or penalties in consequence of
those offenses, the mode of recovering and application of the
penalties, the number of the witnesses and the jurisdiction neces-
sary to the several convictions, and the chapters and sections of
the enacting statutes. Third edition, London, 1786.
The text of this work consists of the various penal clauses of
the British statutes, abridged, and classified under alphabetic titles.
Foot notes present the adjudications turning upon the statutes.
lxx
THE PENAL CODE.
The work was never more than a copious index to the criminal
statutes; and its value in that respect is greatly lessened by the
extensive modifications which have been made in the statute law
of crimes since its date.
There is a later edition than that above mentioned.
Adshead (Joseph).
Prisons and Prisoners. With illustrations. London, 1845.
Alabama.
The Code of. Prepared by John J. Ormond, Arthur P. Bagly,
George Goldthwaite. With head notes and index by Henry C.
Temple. Published in pursuance of an act of the general assem-
bly, approved Feb. 5, 1852. Montgomery, 1852.
This Code repealed all former laws "of a public nature designed
to operate on all the people of the state," not embraced in the
Code; and it constituted a complete system of statute law for the
state, at the time of its passage. Part IV, entitled "Of crimes
and their punishment, proceedings in criminal cases, jails and
penitentiary," forms, therefore, the criminal Code of the state;
and as such has been consulted by the commissioners.
Albany County Penitentiary.
Account of. Albany, 1848.
Reports of, for 1850, 1851, 1852, 1853, 1854, 1855, 1856, 1857,
1858.
Archbold. See Waterman.
Arkansas.
A Digest of the Statutes of Arkansas; embracing all laws of a
general and permanent character in force at the close of the gene-
ral assembly of 1846. Together with notes of the decisions of
the supreme court upon the statutes. By E. H. English. Little
Rock, 1848.
An official compilation of the statute law of the state. Chapter
51, occupying about sixty pages, entitled “Criminal law,” contains
a system of law upon crimes; but is not full enough to suggest
many additions to the present law of our own state.
Arkley (Patrick).
Reports of Cases before the High Court and Circuit Courts of
Justiciary in Scotland, during 1846-48. Edinburgh, 1849.
One of the standard volumes of Scotch criminal reports.
Articles in Reviews, &c.
American Quarterly. Articles on prison discipline, in vol. 14,
p. 228; vol. 18, p. 451.
APPENDIX B.
lxxi
Blackwood's Magazine. On prisons of France, in vol. 42, p.
145.
Childs' National Almanac. Contains brief summaries of prison
statistics for the leading American States.
Christian Examiner. Articles on prison discipline:
By L. Tappen, in vol. 3, p. 203.
L. A. Elliott, in vol. 10, p. 15.
F. W. P. Greenwood, in vol. 16, p. 251.
R. C. Waterston, in vol. 26, p. 54.
F. Parkman, in vol. 27, p. 381.
C. Sumner, in vol. 40, p. 122.
J. H. Morrison, in vol. 44, p. 273.
Democratic Review. On prison discipline, in vol. 19, p. 129,
and vol. 20, p. 172.
Eclectic Review. On prison discipline, in vol. 4, p. 568.
On prison reform abroad, in vol. 22, p. 455.
On London prisons, in vol. 27, p. 280.
Edinburgh Review. On prison discipline. By F. Jeffrey; in
vol. 30, p. 463; vol. 36, p. 353, and vol. 64, p. 169.
On punishment of untried prisoners. By Sidney Smith; in vol.
39, p. 229.
On prisons. By Sidney Smith; in vol. 35, p. 286.
On prisons. By Neild; in vol. 22, p. 385.
Foreign Quarterly Review. On prison discipline, in vol. 12, p.
49, and vol. 27, p. 283.
London Times. See various articles in this journal, mentioned
in preface to Adshead's Prisons and Prisoners.
Monthly Review. On prison discipline, in vol. 97, p. 427; vol.
130. p. 421.
On prisons, in vol. 106, p. 311, and vol. 89, p. 119.
North American Review. On prison discipline:
By Edward Everett, in vol. 37, p. 117.
Geo. S. Hilliard, in vol. 47, p. 452.
Francis Wayland, in vol. 49, p. 1.
Francis Bowen, in vol. 66, p. 145.
Princeton Review. On prison discipline, in vol. 21, p. 331.
U. S. Literary Gazette. On prisons, in vol. 4, p. 176.
Westminster Review. On prison discipline, in vol. 3, p. 420.
Barbour (Oliver Lorenzo).
A Treatise on the Criminal Law of the State of New York, and
upon the jurisdiction, duty and authority of justices of the peace,
and incidentally of the power and duty of sheriffs, constables, &c.,
in criminal cases. Second edition, Albany, 1852.
This volume, being expressly founded upon the law of our own
state, and coming down to a quite recent date, has been of indis-
pensable service, as a manual of, and index to our existing law, as
found in our statutes and reports.
Beaumont (G. de).
Penitentiary System of the United States, and its application in
France; translated from the French, with introduction, &c. By
F. Lieber. Philadelphia, 1833.
lxxii
THE PENAL CODE.
Beck (Theodoric Romeyn and John B.)
Elements of Medical Jurisprudence. Tenth edition. 2 vols.
Albany, 1850.
This work maintains the highest rank among treatises upon
its
subject; and although that subject is only collaterally connected
with the task of compiling the Penal Code, the book has been
frequently of service in its preparation.
The work had reached its twelfth edition in 1858.
Bennett (Edmund H.) & Heard (Franklin Fiske).
A Selection of Leading Cases in Criminal Law, with notes. 2
vols. Boston, 1856.
The cases in these volumes are to be found in the original reports.
But it has been very convenient to consult them collected together
in the compass of two volumes. The notes are, in many instances,
extensive and useful.
Bentham (Jeremy).
Considerations on Prisons; with plans for their better regulation.
1812.
Bishop (Joel Prentiss).
Commentaries on the Criminal Law. Second edition. 2 vols.
Boston, 1858.
The first volume contains the general principles of responsibility
and punishment for crime. Its usefulness for purposes so purely
practical as those of the commissioners, is somewhat qualified
by the introduction of topics belonging quite outside the domain
of penal law. The second volume, containing a discussion of the
American Law of Crimes, arranged in alphabetic order, has been
of the highest utility.
Blackstone (Sir William).
Commentaries on the Law of England. In four books. Book
fourth. Of Public Wrongs.
Blackstone's definitions of crimes are frequently made the basis
of those employed in the Penal Code. The commissioners have
availed themselves of four of the numerous editions of this work:
Tucker's, Chitty's, Wendell's and Sharswood's; having found Shars-
wood's, however, which is the most recent, the most satisfactory.
Boston.
Reports of the Houses of Industry and Reformation in,-for
1838-52.
British Crown Cases.
Crown Cases reserved for consideration and decided by the
APPENDIX B.
lxxiii
twelve judges of England, from the year 1799 to 1851. 6 vols.
Philadelphia, 1839-53.
This is a reprint of the standard English reports of Crown cases
during the period above described, and embraces the reports of
Russell and Ryan, Moody, Jebb, Denison, and Denison & Pearce.
These reports have, of course, been of indispensable service.
Britton.
Containing the antient Pleas of the Crown. Translated and
illustrated with references, notes and antient records. By Robert
Kelham. London, 1762.
This work shows the criminal law of England as it stood in the
beginning of the reign of King Edward the First; the "English
Justinian;" and has been of service whenever the original rules
of the common law required to be reviewed.
Broun (Archibald).
Reports of Cases before the High Court and Circuit Courts of
Justiciary in Scotland, during 1842-45. 2 vols. Edinburg, 1844,
1846.
One of the series of standard reports of Scotch criminal cases.
icknill (John Chas.) and Tuke (Daniel H).
A Manual of Psychological Medicine; containing the history,
nosology, description, &c., of Insanity. With an appendix of
cases. Philadelphia, 1858.
Valuable as an aid to the discussion of questions connected with
the effect of different kinds of insanity upon criminal responsibility.
Burke (Peter).
Celebrated Trials, connected with the aristocracy in the relations
of private life. London, 1849.
Celebrated Trials, connected with the upper classes of society
in the relations of private life. London, 1851.
These two volumes exclude, for the most part, trials of a politi-
cal character; and they are, therefore, the more instructive to the
reader of the criminal law.
Burr (Aaron).
Trial of-on an indictment for treason. Before the Circuit
Court of the United States, held in Richmond, Va., May 7, 1807.
Taken in short hand by T. Carpenter. 2 vols. Washington City,
1808.
Burrill (Alex. M.)
A Treatise on the nature, principles and rules of Circumstantial
Evidence, especially that of the presumptive kind, in criminal cases.
New York, 1856.
lxxiv
THE PENAL CODE.
A valuable work; and one which touches topics so nearly con-
nected with those embraced within the Penal Code, as to have
been of service.
Buxton (Sir Thos. Fowell).
Inquiry whether crime and misery are produced or prevented
by our present system of prison. discipline; with J. J. Gurney's
Notes on a visit made to some of the prisons in Scotland and the
north of England. London, 1818.
Canada.
Consolidated Statutes of. Proclaimed and published under the
authority of the act of 22 Vict., cap., 29; A. D. 1859. Toronto,
1859.
This system of laws is to be distinguished from that enacted in
1859, entitled Consolidated Statutes of Upper Canada; and from
that enacted in 1860, entitled the Consolidated Statutes of Lower
Canada. Those volumes contain laws applicable in one or the
other province only; while in the Consolidated Statutes of Canada
are contained laws of a general application throughout both pro-
vinces. In the latter is found a series of chapters, Nos. 90 to 98
inclusive, filling about sixty royal octavo pages, which comprise a
system of penal law recently framed, and quite comprehensive and
complete. Its provisions are, however, almost all taken from pre-
vious acts of parliament; and in general, where a section has been
made the basis of a provision of the present code-which has
been done in several instances-it has been thought better to con-
sult and make reference to the original act, as more likely to be
accessible to the profession in this state, than to cite the Consoli-
dated Statutes.
Carey (Matthew).
Thoughts on Penitentiaries and Prison Discipline. 1831.
Celebrated Trials;
And Remarkable Cases in Criminal Jurisprudence from the
earliest records to the year 1825. 6 vols. London, 1825.
These reports, of interesting trials, are prepared more with a
view to attract the general reader than to serve the purposes of the
criminal lawyer. They are not without utility, however, to the
lawyer, in exhibiting the modes of procedure and rules of evidence
which obtained, upon criminal trials, at an early date; and in fur-
nishing attendant details respecting cases which are also found in
books of technical law. A review of these cases has brought to
mind some crimes of rare but not impossible occurrence, against
which it was proper that provisions should somewhere be made,
in a code aiming to embody all offenses.
1
APPENDIX B.
lxxv
Chandler (Peleg W.)
American Criminal Trials. 2 vols. Boston, 1841.
The trials collected in these volumes are of greater interest to
the general reader than to those engaged in an examination of the
criminal law.
Chitty (J.)
A Practical Treatise on Medical Jurisprudence; with so much of
anatomy, physiology, pathology, and the practice of medicine and
surgery as are essential to be known by members of parliament,
lawyers, coroners, magistrates, &c., and all the law relating to
medical practitioners, with explanatory plates. Second American
edition. Philadelphia, 1836.
So far as there has been occasion to consult treatises on medical
jurisprudence, those of Beck, Dean, and Wharton and Stillè have
been found more serviceable than this work.
City Hall Recorder. See Rogers.
Coke (Edward).
The third part of the Institutes of the Laws of England, con-
cerning high treason, and other pleas of the crown, and criminal
causes. London, 1797.
Is of leading value as an authority on the state of the English
criminal law during the time of Lord Coke.
Cole (W. R.)
On criminal informations, and informations in the nature of quo
warranto. London, 1843.
Connecticut.
The Statutes of. To which are prefixed the Declaration of In-
dependence, &c. Compiled and published by authority of the
general assembly. New Haven, 1854.
This is the volume known as the "Compilation of 1854." Less
than forty pages are devoted to the law of crimes, strictly con-
sidered; and the system there embodied is too brief and inade-
quate, when compared with our own existing statute law, to furnish
many materials towards its amendment.
Cox (Edward W.)
A Digest of all the cases decided, relating to the Criminal Law,
from 1850 to 1862. London, 1862.
Has been used as an index to the English cases decided during
the period indicated.
Reports of Cases in Criminal Law, argued and determined in
all the courts in England and Ireland, 1843 to 1862. Vols. 1 to 8,
and 7 parts of vol. 9. London, 1846-62.
61
·lxxvi
THE PENAL CODE.
A valuable collection of recent adjudications in criminal cases.
Crown and Circuit Companion.
First American edition, into which has been incorporated the
Crown and Circuit Assistant. Both works carefully revised. New
York, 1816.
This is a book of forms appropriate to criminal proceedings, tọ
which are appended brief statements of the leading rules of law
governing their use. There are later editions than the above;
but the work has not been of any important service.
Dagge (Henry).
Considerations on Criminal Law. London, 1772.
Was anonymously published in the first edition in 1772, but was
in 1774 republished, enlarged, and under the author's name. It
has, however, been superseded by later publications, and is no
longer of importance.
Davis (Daniel).
A Practical Treatise upon the authority and duty of Justices of
the Peace in Criminal Prosecutions. Third edition. Revised and
greatly enlarged by F. F. Heard.
Davis (James Edward).
Boston, 1853.
The Criminal Law Consolidated Statutes of the 24th and 25th
of Victoria, chapter 94-100. Edited with notes. London, 1861.
A reprint of the acts referred to, with brief notes. These acts
are described under the title Greaves.
Dean (Amos).
Principles of Medical Jurisprudence, designed for the professions
of law and medicine. Albany, 1850.
A valuable work. In so far as questions pertaining to medical
jurisprudence have come up for consideration in preparing the
Penal Code, this volume has been of considerable service.
Delaware.
Revised Statutes of-to 1852, inclusive. Published by the
authority of the General Assembly. Dover, 1852.
Contains a brief title, of twenty-three pages, of "crimes and
punishments," inadequate to aid materially in the present task.
Denison. See British Crown Cases.
District of Columbia.
The Revised Code of. Prepared under the authority of the act
of Congress of March 3, 1855. Washington, 1857.
1
APPENDIX B
lxxvii
Contains a comparatively brief title upon "crimes and the pun-
ishment thereof;" which has, however, been only of secondary
service.
Dix (Miss D. L.)
Remarks on Prisons and Prison Discipline. Boston, 1845.
East (Edward Hyde).
Treatise of the Pleas of the Crown. 2 vols. London, 1803.
There are later editions of this work than that above mentioned.
It is well known as a standard authority in English criminal law,
and has been of constant service to the commissioners, especially
in ascertaining the common law definitions of the various crimes.
English Commissioners.
Reports of, on the Criminal Law. 2 vols. Comprising eight
successive reports.
Reports of, on Revising and Consolidating the Criminal Law.
1 vol. Comprising five reports.
These reports show the history and progress of the efforts so
long continued in Great Britain, by the ablest jurists of the realm,
to accomplish the codification or at least the systematic consoli-
dation of the criminal law. They abound in information upon the
defects of the former statute law of Great Britain, and in sugges-
tions for its improvement; and though not easily used, for want
of the systematic arrangement, and the indexes, common in pro-
fessional manuals, but not easily available in legislative reports
of this character, they well repay one who studies the law with
a view to its amendment, for the labor required for their examina-
tion.
English Statutes.
The Consolidated Statutes of 1861, are elsewhere described. See
Greaves. The earlier acts relative to crimes, have, however, been
extensively consulted, in the statutes at large; which now exist in
upwards of eighty volumes.
Florida.
A Manual or Digest of the Statute Law of-of a general and
public character, in force Jan. 6, 1847. Digested and arranged
under an act of assembly approved Dec. 10, 1845. By Leslie A.
Thompson. Boston, 1847.
Contains about 30 pages devoted to crimes and misdemeanors.
The common law of England, except as relates to the mode and
degree of punishment, is preserved, and offenses known to the
lxxviii
THE PENAL CODE.
common law and not expressly provided for otherwise, are made
punishable by a fine not exceeding $100, or imprisonment not
exceeding 12 months, at the discretion of the jury. Very few
offenses known by distinct names to the English law, are defined,
but punishments are simply affixed to them by their names, the
courts being left to the common law authorities to ascertain the
acts intended to be punished. Such a system of laws can aid the
preparation of a true code, only by suggesting specific offenses that
might otherwise be overlooked.
Field (J.)
The Advantages of the Separate System of Imprisonment, as
established in the new county gaol of Reading, with a descrip-
tion of the former prisons, and a detailed account of the discipline
now pursued. London, 1846.
Prison Discipline, or the Advantages of the Separate System
of imprisonment. 2 vols. London, 1848.
Foster (Sir Michael).
Crown Law. A Report of some proceedings on the Commis-
sion for the Trial of the Rebels in the year 1746, in the county of
Surry, and other Crown Cases; to which are added Discourses
upon a few branches of the crown law. Second edition with
additional notes and references, by Michael Dodson. London,
1791.
This work was not intended as a systematic treatise on criminal
law. It has, however, attained a rank nearly equal to that of the
best of the earlier English treatises, as respects the subjects treated
in the "discourses," which are chiefly Treason, Homicide and
Accomplices. There has been, however, but little necessity for
relying on this work in the preparation of the Code.
Foulke (W. P.)
Remarks on the Penal System of Pennsylvania, particularly with
reference to county prisons. Philadelphia, 1855.
On Cellular Separation.
French Codes.
Philadelphia, 1861.
Les Codes Francais, conformes aux textes officiels, avec la con-
férence des articles entre eux: contenant les lois, decrets, ordon-
ances, avis du conceil d'etat, circulaires qui expliquent, completent,
modifient on abrogert certaines dispositions des Codes: les lois de
la presse, les tariffs en matière civil et criminelle, l'enregistrement,
le timbre, les hypotheques etc. Specialement tous les textes don-
nés comme matières de thèses par les facultés des droit. Nouvelle
édition entirement refondue; précédée d'une table chronologique
et suivie d'une table alphabetique. Par M. P. Royer Collard.
aveè la collaboration de M. Mourlon. Paris, 1858.
APPENDIX B.
lxxix
Codes de la legislation Francaise, avec des annotations sur les
lois les plus ussuelles, la definition et explication des termes de
droit. &c., par M. Napoleon Bacqua. Edition nouvelle 're partie
pour l'audience, les fonctionnaires publics et les écoles de droit.
Code Politique,-Code Napoleon-Code de procedure Civile-
Code de Commerce,-Code d'instruction criminelle,-Code Penal
-Code des frais-Code forestier. Paris, 1860.
Gabbett (Joseph).
A Treatise on Criminal Law. Comprehending all crimes and
misdemeanors punishable by indictment, and all offenses cognizable
summarily by inagistrates; with the modes of proceeding upon
each. 2 vols. bound in 3. Dublin 1843.
A very full and conveniently arranged statement of the modern
criminal law of the United Kingdom as it existed subsequent to
"Peel's acts," so called, and before the important statutes known
as Lord "Campbell's acts," and the "Consolidation acts" of 24 and
25 Vict. It was designed chiefly for use in Ireland, but contains
information on the English law where that differs from the law of
Ireland.
Georgia.
A Codification of the Statute Law of-including the English
Statutes of force, in four parts. Compiled, &c., by William A.
Hotchkiss, by authority of the Legislature. Second edition.
Augusta, 1848.
Part IV of this compilation contains about seventy pages devoted
to the law of crimes. The system here presented approaches to
the comprehensiveness and completeness desired in a code. Rules
of criminal responsibility are prescribed; and the various crimes
are defined, and the definitions given are in general lucid and well
framed. No express provision has been noticed excluding the
application of the common law of offenses to crimes not provided
for by the statute; but the evident object is to prevent a neces-
sity for recurrence to the common law. The definition of this
act have aided the commissioners in several instances; though
chiefly by way of confirming those already in use in the authori-
ties recognized in this state. The act is not sufficiently recent in
date to be relied on as likely to point out deficiencies in our law.
Gray (F. C.)
Prison Discipline in America. Boston, 1847.
Greaves (Chas. Sprengel).
Lord Campbell's Acts for the further improving the administra-
tion of criminal justice, and the better prevention of offenses,
together with the act for the better protection of apprentices and
servants, and the act for amending the law relating to the expenses
lxxx
THE PENAL CODE.
of prosecutions. With notes, observations and indictments. Lon-
don, 1851..
The important provisions of Lord Campbell's acts, upon subjects
which fall within the scope of the present Penal Code, were re-
pealed by the acts passed in the 24th and 25th Vict., substituted
enactments being therein given. In general, therefore, the later
provisions have been cousulted in preference to the earlier and
repealed ones.
The Criminal Law Consolidation and Amendment Acts of the
24 and 25 Vict., with notes, observations and forms for summary
proceedings. Second edition. London, 1862.
The series of acts republished in this volume must be recognized
as of the highest importance in their bearing upon the reform of
criminal law, wherever the influence of the English law of crimes
and punishments is felt. The series does not attempt to embody in
form a complete code of criminal law. The preparation of such a
code seems to have been contemplated in the original appointment
of the Criminal Law Commissioners in 1833; but the statutes now
under consideration, and which are known as the "Criminal Law
Consolidation Acts," are distinct acts, each intended rather as a
consolidation of the existing statute law upon the subject to which
the act relates, than as a codification of the yet unwritten law.
The scope of the series, however, is so extensive that it covers the
leading and important portions of the law of crimes, and approaches
practically to the completeness, if it does not aim at the symmetry,
of a code.
The acts in question are seven in number; their subjects, arrang-
ing them in the order in which they stand in Mr. Greaves' work,
being the following:
1. An act to consolidate and amend the Statute Law of England
and Ireland, relating to Accessories and Abettors of Indictable
offenses. 24 and 25 Vict., ch. 94. Contains eleven sections.
2. An act to consolidate and amend the Statute Law of England
and Ireland, relating to Offenses against the Person. 24 and 25
Vict., ch. 100. Contains seventy-nine sections.
3. An act to consolidate and amend the Statute Law of England
and Ireland, relating to Larceny and other similar offenses. 24
and 25 Vict., ch. 96. Contains one hundred and twenty-three
sections.
4. An act to consolidate and amend the Statute Law of England
and Ireland, relating to Malicious Injuries to Property. 24 and 25
Vict., ch. 97. Contains seventy-nine sections.
5. An act to consolidate and amend the Statute Law of England
and Ireland, relating to Indictable offenses by Forgery. 24 and
25 Vict., ch 98. Contains fifty-six sections.
6. An act to consolidate and amend the Statute Law of the
United Kingdoms against offenses relating to the Crown. 24 and
25 Vict. Contains forty-three sections.
:
APPENDIX B.
lxxxi
7. An act to repeal certain enactments which have been consoli-
dated in several acts of the present session, relating to indictable
offenses and other matters. 24 and 25 Vict. Contains four sec-
tions, and a lengthy schedule, enumerating in detail the acts and
parts of acts repealed.
Frequent reference has been made in the preparation of the Penal
Code to these English statutes; and they have been the source
from which many of the additions to our existing law, embodied
in the Code, have been drawn.
The present volume contains, not only the Consolidation Acts
themselves, but also an elaborate introduction, and many annota-
tions by Mr. Greaves, who had himself a principal share in the
preparation of the statutes. This introduction and these notes
have been of essential service in the preparation of the Penal Code.
Hale (Sir Matthew).
History of the Pleas of the Crown, with notes by Solom Emlyn.
First American edition, with notes, &c., by W. A. Stokes and E.
Ingersoll. 2 vols. Philadelphia, 1847.
The value and authority of this work as a standard one in Eng-
lish criminal law is too well known to require any extended com-
ment. It has been resorted to, in common with the works of East,
Hawkins, and others, whenever questions as to the earlier English
law of crimes have arisen.
Hawkins (William).
A Treatise of the Pleas of the Crown; or a system of the princi-
pal matters relating to that subject, digested under proper heads.
7th edition, by Thomas Leach. London, 1795. 4 vols.
The merits of this volume, like those of that last mentioned, are
well known. As a compend of the earlier English law of crimes,
it is more full and comprehensive than the works of East and Hale.
Although, in the progress of jurisprudence, all works of this class
have become of secondary value to the practitioner, resort to the
treatise of Sergeant Hawkins is frequently necessary by those who,
having in charge the amendment of the law, require to trace its
history in the progress of its development.
The classification of crimes framed by Hawkins, as remodelled
by Blackstone in the fourth part of the commentaries, has been
more closely followed than any other one system, in the Penal
Code. In Hawkins' work the leading principle is, that offenses
are classified by the person against whom they are committed.
His order is: 1. Offenses which are more immediately against God,
or against religion and the established church; 2. Those more im-
mediately against the king, under which head are included many
offenses which among us are considered as offenses aimed peculiarly
lxxxii
THE PENAL CODE.
against the state; 3. Offenses more immediately against the sub-
ject; being those against the life of a man-those against his
goods-those against his habitation-and those against the public
justice, revenue, trade, funds, credit, health, peace, &c. There
are some difficulties in the attempt to classify crimes accurately
upon this principle; but it has been so widely adopted and ap-
proved as a basis of later works, and is so far superior, in a philo-
sophic point of view, to the method adopted in our own Revised
Statutes, of classifying crimes by the measure of punishment
awarded: 1. Crimes punishable by death; 2. Crimes punishable
by imprisonment in a state prison-subdivided into offenses against
the person, offenses against property, and offenses against public
peace, &c.; and, 3. Offenses punishable by imprisonment in a
county jail and by fine-that it has been preferred as the govern-
ing principle in the arrangement of subjects in the Code.
Hayes (Edmund).
Crimes and Punishments; or a Digest of the Criminal Statute
Law of Ireland. Second edition. Dublin, 1842–43.
The extensive changes in the statute law, which have been
made since the date of this work, have deprived it of much of its
usefulness.
Haynes (Gideon).
See his report as warden of Massachusetts state prison, Charles-
town, for 1861-in which he contrasts the results of the Auburn
or congregated plan of prison discipline with its opposite, and
gives statistics for 30 years of Charlestown prison and Eastern
Penitentiary, Pennsylvania.
These statistics are summed up in Child's National Almanac for
1863, p. 377, 378.
Hill (Frederick).
Crime; Its Amount, Causes and Remedies. London, 1855.
Holford (George).
Account of the general penitentiary at Milbank. London,
1828.
Holland (Laws of).
Institutes of the Laws of Holland. By Johannes van der Lin-
den, LL. D.; translated by J. Henry. London, 1828.
Includes a view of the criminal law of Holland.
Holtzendorf.
The Irish Convict System. London, 1860.
1
APPENDIX B.
lxxxiii
Howard (John).
State of the Prisons in England and Wales. Fourth edition.
London, 1789-92. 2 vols.
Howell (T. B. and T. J.)
Cobbett's Complete Collection of State Trials and Proceedings
for High Treason and other crimes and misdemeanors, from the
earliest period to the present time. London, 1809–11. 10 vols.
Vols. 11 to 21, in continuation, compiled by T. B. Howell, London,
1811–16; and a continuation from the year 1783 to 1820, by
Thomas J. Howell, in 12 vols., being vols. 22 to 33 of the entire
series, London, 1817-26; with a General Index by David Jardine,
London, 1828, entitled "State Trials, vol. 34." 34 vols. in all.
Among the original sources of the English Criminal Law, these
❤volumes have a high place. In tracing the history of the law of
the more common and familiar crimes, for the purposes of the
Code, frequent reference to the series has been needful.
Hubbell (G. B.)
State Prison Discipline. Remarks in N. Y. Assembly, 1859,
Albany, 1859.
Hume (David).
Commentaries on the Law of Scotland, respecting crimes; with
a supplement by Benj. Robert Bell. 2 vols. 4to. Edinburgh,
1844.
A standard authority in the criminal law of Scotland.
Illinois.
A Compilation of the Statutes of-Of a general nature, in force
Jan. 1, 1856, collated with reference to decisions of the Supreme
Court, and prior laws. By N. H. Purple. 2 vols. Chicago,
1856.
Contains a systematic penal statute of 1845, with provisions of
later laws appended. The act of 1845 is similar in general charac
ter, and in many of its provisions to that of Georgia, elsewhere
described.
Indiana.
Statutes of the State of containing the Revised Statutes of
1852, with the amendments thereto and the subsequent legislation,
with notes, &c. Edited by James Gavin and Oscar B. Hord. 2
vols. Indianapolis, 1812.
Contains a brief statute on crimes, amounting to but little more
than a regular system of punishments for crimes recognized as
already known to the common law, with the addition of penalties
imposed for some other specific acts.
Indian Penal Code.
Return to an order of the House of Commons dated 30 July,
1838, for a copy of the Penal Code prepared by the Indian Law
62
lxxxiv
THE PENAL CODE.
Commissioners and published by command of the Governor
General of India in council. Ordered by the House of Commons.
to be printed, 3d August, 1838.
This is the Commissioners' draft of the statute enacted for India
many years later, under the following title:
The Indian Penal Code (Act XLV of 1860) with notes by W.
Morgan and A. G. Macpherson, barristers-at-law. London, 1861.
This code was originally prepared by the Indian Law Commis-
sioners when Lord Macaulay was the president of that body, and
was laid before the Governor-General of India in council, in the
year 1837. It was enacted in 1860. The present volume contains
the act as passed, with extensive notes explaining its meaning and
application.
The provisions of the Indian Code have suggested several
amendments of our own law, embodied in the Penal Code.
Jameson (Mrs.)
Sisters of Charity and Communion of Labor. Containing arti- ·
cles on Prisons and Penitentiaries, &c. London, 1859.
Jardine (David).
A Reading on the use of Torture in the Criminal Law of Eng-
land, previously to the Commonwealth. London, 1837.
An interesting tract on a topic quite unimportant to the practi-
cal amendment of the criminal law of New York.
Criminal Trials, supplying copious illustrations of important
periods of English history. 2 vols. London, 1846-47.
The remark elsewhere made relative to the similar collection. of
trials by Chandler, applies to these volumes.
Jebb. See British Crown Cases.
Kentucky.
Revised Statutes of-in force from July 1, 1852, with all the
amendments subsequently enacted, and notes of decision; and an
appendix containing all the enactments passed during 1859 and
1860, by Richard H. Stanton. 2 vols. Cincinnati, 1860.
The remark above made upon the statute law of Indiana applies
to the brief chapter on criminal law contained in this compilation.
Leach (Thomas).
Cases in Crown Law, determined by the Twelve Judges, by the
Court of King's Bench, and by Commissioners of Oyer and Ter-
miner and General Gaol Delivery, from 4 Geo. II (1730) to 55
Geo. III (1815). Fourth edition. London, 1815. 2 vols.
A general and valuable collection of English decisions.
?
APPENDIX B.
lxxxv
Leading Criminal Cases. See Bennett.
Letters.
On the comparative merits of the Pennsylvania and New York
systems of penitentiary discipline By a Massachusetts man.
Boston, 1836. 8 vo.
Lewin (Sir Gregory A.)
A Report of Cases determined on the Crown side on the Northern
Circuit, commencing 1822 and ending 1833. London, 1834.
Not arranged like an ordinary volume of reports, but partaking
the character of a digest, in so far as that the points of the various
cases are classified under their appropriate titles, alphabetically
arranged.
Lieber (Francis).
A Popular Essay on subjects of Penal Law, and on Uninter-
rupted Solitary Confinement at Labor, as contradistinguished to
solitary confinement at night, and joint labor by day; in a letter ·
to John Bacon. Philadelphia, 1838.
Livingston (Edward).
Letter to Robert Vaux on the Pennsylvania system of prison
discipline. Philadelphia, 1828.
A System of Penal Law for the State of Louisiana. Consist-
ing of: a code of crimes and punishments; a code of procedure; a
code of evidence; a code of reform and prison discipline; a
book of definitions. Prepared under the authority of a law of
the said state. To which are prefixed a preliminary report on the
plan of a penal code, and introductory reports to the several codes.
embraced in the system of Penal Law. Philadelphia and Pitts-
burgh, 1833.
One of the most famous essays towards law amendment, in our
language. Very complete, accurate, philosophic and suggestive.
In style it partakes too much of the character of a treatise, too
little of that of a statute to be fully adapted for enactment; but
the substance of many of its provisions has been embodied in pro-
visions of this code.
A system of penal law for the United States of America. Con-
sisting of: a code of crimes and punishments; a code of pro-
cedure in criminal cases; a code of prison discipline, and a book
of definitions. Prepared and presented to the house of represen-
tatives of the United States, by Edward Livingston. Printed by
order of the house. Folio. Washington, 1828.
Louisiana.
A Digest of the penal law of the State of Louisiana, analytically
arranged. By authority. By M. M. Robinson. New Orleans,
1841.
Has been of only secondary service.
lxxxvi
THE PENAL CODE.
1.
Luckey (Rev. John).
Prison Sketches. By a Chaplain. Edited by D. P. Kidder.
New York, 1849.
McLeod (Alexander).
Trial of-for the murder of Amos Durfee.
This trial has been famous in American jurisprudence, and
acquires renewed importance at the present day, from its bearing
upon questions of public law. The alleged offense was committed
in 1837. The Caroline was a small steamer, owned in Buffalo and
plying as a ferry boat between that city and Navy island, on which
a band of insurgents were posted with the intention of invading
Canada for the overthrow of its government. While lying at
Schlosser, a short distance above Niagara Falls and within the
State of New York, she was, on the night of the 29th of Decem-
ber, 1837, boarded by an armed body from the Canadian shore,
seventy or eighty strong. One person was mortally wounded,
others were shot and seriously injured, and twelve others, missing,
were supposed to have perished in the steamer, which was cut
loose, set on fire and sent over the Falls.
In 1839, Alexander McLeod, of Upper Canada, was arrested at
Lewiston, in New York State, on a charge of murder and arson in
this affair of the Caroline. This arrest excited much feeling, both
in this country and in England, and very soon a demand was made
by the British government for McLeod's liberation under the
avowal that the proceedings in which he took part were under its
sanction. This was refused. The trial however, ended in the
acquittal of the accused on the ground of an alibi.
MacNally (Leonard).
Rules of Evidence on Pleas of the Crown, illustrated from
printed and manuscript trials and cases. 2 vols. Philadelphia,
1804.
A reprint of an Irish work of considerable merit.
McNeil (D. B.)
Laws of the State of New York, relating to State prisons and
the State Lunatic Asylum for insane convicts, passed since the
adoption of the Constitution of 1846. Compiled from and com-
pared with the original laws on file in the office of the Secretary
of State. Albany, 1864.
A reprint of the statute laws. The same matter may be found
scattered throughout the annual volumes of session laws; but it is
exceedingly convenient to the student of the particular subject, to
have them collected in this form. Had the work been received by
the commissioners before title XIX of the Code was prepared, it
{
APPENDIX B.
lxxxvii
would have materially assisted their labors upon that part of the
work.
Maine.
Revised Statutes of the State of-passed April 7, 1857. Port-
land and Hallowell, 1857.
The leading features of the statute law of crimes in Maine, are
borrowed from that of Massachusetts; and the more recent compi-
lation in the latter State has rendered recourse to the statutes
of Maine comparatively infrequent.
Maryland.
The Maryland Code. Public General Laws. Compiled by
Otho Scott and Hiram McCullough, commissioners. Adopted by
the Legislature, January, 1980. With an Index by Henry J.
Machall. 1 vol. Baltimore, 1860.
One article of this compilation treats of the criminal law, some-
what fully, as respects the number of offenses provided for; but
without any such completeness in regard to the definitions of
offenses, as to give the work fully the character of a code, properly
so-called. A supplement, issued in 1862, was received too late to
be of service.
Rules and Regulations of the Maryland Penitentiary. En-
larged edition. Baltimore, 1853.
Massachusetts.
The General Statutes of the Commonwealth of. Revised by
commissioners, amended by the Legislature, and passed Dec. 28,
1859. Edited and published under authority of resolves of 1859.
Boston, 1861.
If it be the best policy to forego a code, and to rely, in the
administration of the criminal law, upon a system of statutes cover-
ing, by express provisions, the leading and more common crimes,
and upon a reserved power in the courts to apply general princi-
ples of unwritten law to new developments of misconduct and to
cases suggesting nice distinctions, it is difficult to see how the
work of penal legislation could be better done, having reference to
the wants of the particular State, than in Title I of Part IV of
this compilation. Not all crimes are defined; nor are common
law offenses excluded; but the definitions, when given, are lucid
and easily applied, the language is compact and concise, and the
whole construction of the act, practical, and adapted for easy and
just administration. The provisions fill about thirty-six royal
octavo pages, more closely printed than many like compilations.
They have been frequently consulted in the preparation of the
Penal Code, and always with advantage.
Ixxxviii
THE PENAL CODE.
Report of the Penal Code of prepared under a resolve of the
Legislature, passed February 10, 1837. Boston, 1844.
This work is an inchoate undertaking similar in character and
design to the draft of the present Penal Code. It only purports to
exhibit the method upon which the Massachusetts commissioners
appointed to codify the criminal law of that State, proposed to pro-
ceed in the execution of their task. It forms, however, a full sized
volume, and treats quite comprehensively and suggestively of the
leading offenses. Some aid has been derived from it in framing
the analysis and some of the definitions given in the Penal Code.
Report of the Joint Standing Committee on Prisons, to inquire
what change is necessary, if any, in the discipline at the State
Prison. Mass. House of Rep., May, 1857.
Laws of the Mass. State Prison, 1829. Charlestown, 1830.
Matthews (James M.)
Digest of the Laws of Virginia of a criminal nature, illustrated
by judicial decisions. Richmond, 1861.
Has been of occasional service.
Mechanics' State Convention.
Proceeding of the, at Utica, 1834, on the effect produced on the
trades by the system of state prison discipline.
Michigan.
Compiled Laws of the State of. Published by authority.
Compared and arranged by Thos. M. Cooley. 2 vols. Lansing,
1857.
Contains a tolerably complete title, filling sixty pages, upon
crimes and the punishment thereof.
Minnesota.
The Public Statutes of the State of-1849-1858. Compiled by
Messrs. Sherburne and Wm. Hollinshead, commissioners. Pub-
lished by State authority. St. Paul, 1859.
The provisions on crimes in this collection of laws follow too
closely the existing statutes of New York to be of much aid in
amending them.
Missouri.
Revised Statutes of the State of. Revised and digested by the
18th general assembly during 1854 and 1855. Charles H. Hardin,
commissioner. Published by authority of law. 2 vols. Jefferson,
1856.
Contains a chapter upon crimes, which is tolerably full, but has
not been of any essential service.
Moody. See British Crown Cases.
1
APPENDIX B.
lxxxix
Morgan. See Indian Penal Code.
New Hampshire.
The Compiled Statutes of the State of; to which are prefixed
the Constitution, &c. Published by order of the legislature.
Second edition. Concord, 1854.
The provisions upon crimes in this volume are too brief to have
been of any material service.
New Jersey.
A Digest of the Laws of. By Lucius Elmer. Third edition,
containing all the laws of general application, now in force, from
1709 to 1861, inclusive, with the rules and decisions of the courts.
By John T. Nixon. Published under the patronage of the legisla-
ture. Bridgeton and Trenton, 1861.
Several provisions of the Penal Code have been suggested by
the New Jersey statutes presented in the above work.
Statistics of the state prison of New Jersey from 1799 to
1845. Trenton, 1846.
Reports on the condition of the state prison, 1856, 1857, 1858.
New York.
Auburn state prison. Reports of inspectors between 1829 and
1847.
Clinton state prison. Annual reports, 1845, 1846, 1847.
Mount Pleasant state prison. Annual reports between 1832
and 1848.
Report of select committee of the assembly on the condition
of the state prisons. 1852.
Annual reports of the inspectors of state prisons since 1849.
State of New York. No. 98. In Senate, March 18, 1846.
Report of the Secretary of State, of abstracts of convictions for
criminal offenses, and of the returns of sheriffs respecting the.
persons convicted.
Statutes of.
The most cursory glance at the Code will show that the
Revised Statutes and Session Laws of our own State have been its
principal basis. Indeed, as already explained in the preliminary
note, the general rule has been to take the provision of the Code
from the existing statute, if there was one, upon the subject under
consideration, and to introduce a new enactment only in cases
when there was none at all, or where the present law was believed
to be in some way defective or objectionable.
North Carolina.
Revised Code of-enacted by the general assembly at the session
of 1854, together with other acts of a public and general nature,
XC
THE PENAL CODE.
passed at the same session, &c. Prepared under acts of the gene-
ral assembly, passed at the sessions of 1850 and 1854. By Bar-
tholomew T. Moore and Asa Biggs. Boston, 1855.
The remark made relative to the provisions of the Maryland
Code, applies equally to this volume.
Ohio.
Special Report of the warden (L. Dewey) of the Ohio penitenti-
ary, on prisons and prison discipline. Columbus, 1851.
Report of the directors and warden (J. Ewing) for 1856.
Columbus, 1856.
The Revised Statutes of-of a general nature, in force,
August 1st, 1860. Collected by Jos. R. Swan, with notes by
Leander J. Critchfield. 2 vols. Cincinnati, 1860.
A very well arranged and digested compilation of a somewhat
heterogeneous collection of statutes, passed at various dates during
the last thirty years.
Packard (F. A.)
Inquiry into the alleged tendency of the Separation of Convicts,
one from the other, to produce disease and derangement. By a
citizen of Pennsylvania. Philadelphia, 1849.
1841.
Memoir of a late visit to Auburn penitentiary. Philadelphia,
Vindication of the separate system of prison discipline from
the misrepresentations of the North American Review, July, 1839.
Philadelphia.
Parker (Amasa J.)
Reports of Decisions in Criminal Cases made at term, at cham-
bers, and in the courts of oyer and terminer of the State of New
York. 4 vols. Albany, 1855-1856.
These volumes are important to one who would acquaint him-
self fully with the criminal jurisprudence of New York State, and
they have been, of course, frequently referred to in the preparation
of the Code. A majority of the cases are not elsewhere reported,
and many of them are of recent date and contain authoritative de-
cisions of important questions.
Paris (J. A.) and Fonblanque (J. S. M.)
Medical Jurisprudence. 3 vols. London, 1823.
A leading work in its day. The preparation of the Code has
not required, however, very extended researches in medical juris-
prudence; and upon the questions which have arisen, the more
recent works of Beck, Dean, and Wharton & Stillé have been
found more convenient than this one, eminent as it is.
1
APPENDIX B.
xci
Partidas.
The laws of Las Siete Partidas, which are still in force in the
State of Louisiana. Translated from the Spanish by L. Morean
Lislet and Henry Carleton. New Orleans, 1820.
Was of service in perfecting the analysis of the Code.
Pennsylvania.
History of the Eastern Penitentiary of. Philadelphia, 1852.
Journal of Prison Discipline and Philanthropy. Published
quarterly under the direction of the Philadelphia Society for the
alleviation of the miseries of public prisons. From 1845 onward.
Reports of the Eastern Penitentiary of. From 1846 onward.
Philadelphia Society.
Sketches of the Principal Transactions of the Philadelphia
Society for the alleviation of the miseries of public prisons, from
its origin. Philadelphia, 1859.
Pitcairn (Robert).
Criminal Trials in Scotland, from A. D. 1488, to A. D. 1624; em-
bracing the entire reigns of James IV and V, and Mary Queen of
Scots, and James VI; compiled from the original Records and
MSS.; with Historical Notes and Illustrations. 3 vols.
burgh, 1833.
Powers (Gershom).
Edin-
Letter to Edward Livingston in relation to Auburn State Prison.
1829.
A brief account of the Auburn State Prison. Auburn, 1826.
Prison Association.
Nineteenth Annual Report of the Executive Committee of the
Prison Association of New York. Transmitted by the Legisla-
ture, Jan. 29, 1864. Albany, 1864.
Gives the results of the visits of inspection made by the com-
mittees of the association during 1863, to the State prisons and
county jails and penitentiaries of the State. Abounds in valuable
information upon the present condition of the institutions visited,
and in important suggestions towards their improved manage-
ment.
Pulton (Ferdinando).
De Pace Regis et Regni, viz: A Treatise declaring which be
the great and generale offences of the Realme, and the chiefe im-
pediments of the peace of the King and the Kingdome, as Menaces,
Assaults, Batteries, Treasons, Homicides and Felonies, Ryots,
Routs, Vnlawful assemblies, &c., &c., which being reformed, or
duly checked, Florebit pax Regis et Regni. Collected out of the
Reports of the Common Lawes of the Realme, and of the Statutes
63
xcii
THE PENAL CODE.
in force, and out of the painful workes of the Reverend Judges,
Sir Anthony Fitzherbert, &c., &c. 1 vol. folio. London, 1609.
A leading authority upon the common law in its early condition,
and as such, very serviceable.
Ray (J.)
A treatise on the Medical Jurisprudence of Insanity. Fourth
edition, with additions. Boston, 1860.
A recent and somewhat enlarged edition of a work, always
highly respected upon the special topic to which it relates. Upon
the important topic of the amenability of persons laboring under
mental diseases, to criminal punishment for their acts, Dr. Ray is of
opinion that the rules of the English and American law originated
at a time when the philosophy of disease of the mind was not well
understood, and that the courts of law have not kept pace with the
progress of science on this subject; that under the usual legal defi
nitions, many persons are held liable to punishment who, upon
views more in accordance with the facts of mental derangement,
would be deemed excused; and that the protection of society
against the acts of the insane ought to be sought more through
efforts for their guardianship and restoration, and less through the
administration of criminal punishment, than is done at present.
These views are advocated throughout his volume with great
ability. The questions connected with this subject have been con-
sidered with much care in the preparation of the provisions of the
code which bear upon the criminal responsibility of the insane,
and the views above indicated, as advocated by Dr. Ray and others
no less entitled to respect, have been attentively considered. But
while the commissioners regard the subject as one of great diffi-
culty, a majority of them have considered it wiser to maintain
the rule of legal responsibility, as it has been declared by the later
adjudications of the courts. The rule has been so declared in
sections 16 and 18 of the Code.
Rhode Island.
The Revised Statutes of the State of Rhode Island and Provi-
dence Plantations. Published by authority of the General Assem-
bly. Providence, 1857.
Contains a title of about 25 pages "Of crimes and punishments,”
which has been several times useful.
Rogers (Daniel).
The New York City Hall Recorder. Containing reports of the
most interesting trials and decisions which have arisen in the vari-
ous courts of judicature for the trial of jury causes in the hall
!
APPENDIX B.
xciii
during those years, particularly in the court of sessions. 6 vols.
bound in 3. 1816-1821. New York, 1817–22.
This was a species of law magazine, being published in monthly
numbers, from Jan., 1816, to Dec., 1821. It is chiefly devoted to
criminal cases tried at the New York City Hall during the period
of its publication. It contains, however, some notices of cases in
other states. Not many of the cases reported in these volumes
contain decisions of points of law which now have much authority.
The work embodies, however, an interesting, if not a very useful,
exhibit of the earlier criminal jurisprudence of our State, as admin-
istered in the city of New York.
Roscoe (Henry).
A Digest of the Law of Evidence in Criminal Cases. Second
edition, with considerable additions by T. C. Granger. With notes
and references by George Sharswood. Philadelphia, 1840.
A well known and very valuable manual.
Russell (William Oldnall).
A Treatise on Crimes and Indictable Misdemeanors. With
additional notes of decisions in the American courts, by Daniel
Davis. Second American from the second English edition, with
additional references, by Theron Metcalf. Philadelphia, 1881.
Well known as the leading work on the English criminal law as
it existed prior to the recent sweeping statutory changes. A new
edition of Russell is understood to be in preparation by Mr. Chas.
S. Greaves, in which form the work will doubtless resume its former
place at the head of the manuals of the criminal law.
Russell and Ryan. See British Crown Cases.
Sampson (M. B.)
Rationale of Crime, and its Appropriate Treatment; being a
treatise on Criminal Jurisprudence, considered in relation to
Cerebral Organization. With notes and illustrations by E. W.
Farnham. 12 mo. New York, 1846.
Sanford (H. S.)
The different systems of Penal Codes in Europe; also a report
on the administrative changes in France, since the Revolution of
1848. 33d Congress, 1 sess. Ex. doc. No. 68. Washington,
1854.
So much of this volume as relates to the penal codes of Europe,
forms the basis of Appendix A which follows the text of this Code
in the present volume. It will be seen by referring to that paper,
that the work has been of essential service.
xciv
THE PENAL CODE.
Saunders (T. W.) and Cox (Edward W.)
The Criminal Law Consolidation Acts, 1861; the other new
criminal statutes and parts of statutes of the sessions 1861 and
1862; together with a digest of the criminal cases from 1848 to
1862. Second edition. London, 1862.
The criminal law consolidation acts are elsewhere described.
See Greaves. The present volume contains one or two later acts,
which are comparatively unimportant. The digest is substantially
the same with that already described. See Cox.
Shaw (John).
. Reports of Cases before the High Court and Circuit Courts
of Justiciary in Scotland, during 1848-1852. Edinburgh, 1853.
One of the series of standard reports in the criminal law of
Scotland.
Smith (John Gordon).
The Principles of Forensic Medicine systematically arranged
and applied to British practice. Second edition. London, 1824.
The remark made upon Chitty's Medical Jurisprudence applies
equally to this work.
Smith (G. W.)
A Defense of the System of Solitary Confinement of prisoners
in Pennsylvania. Philadelphia, 1838.
Spanish Civil Law.
Institutes of the Civil Law of Spain. Translated from the
Spanish, with notes, &c., by Lewis F. C. Johnston. London, 1825.
Two of the titles of this volume-titles 19 and 20, of Book II—
treat of criminal law, and were examined in preparing the analysis;
both for the purpose of perfecting the classification, and to ascer-
tain offenses which ought to be included.
Starkie (Thomas).
Treatise on Criminal Pleading; with precedents of indictments,
special pleas, &c. First American from the last London edition.
1 vol. Exeter, 1824.
Staundeforde (Guilliaulme).
Les Plees del Coron, diuisees in plusors titles and comon lieux,
1574.
Has been occasionally consulted on questions relative to the
early rules of the common law.
Stephen (Henry J.)
Summary of the Criminal Law. Philadelphia, 1840.
APPENDIX B.
XCV
A reprint of an English work, formerly much esteemed. There
is a later edition.
Swinton (Archibald).
Reports of Cases before the High Court and Circuit Courts of
Justiciary in Scotland from 1835 to 1841. 2 vols.
2 vols. Edinburgh,
1838, 1842.
One of the standard series of Scotch criminal reports.
Tellkampf (J. L.)
Essays on Law Reform, Penitentiaries, &c., in Great Britain
and the United States. London, 1859.
Thacher (Peter O.)
Reports of Criminal Cases tried in the criminal court of the city
of Boston, before Peter Oxenbridge Thacher, judge of that court,
from 1823 to 1843. Edited by Horatio Woodman. Boston, 1845.
Townsend (William C.)
Modern State Trials; revised and illustrated with essays and
notes. 2 vols. London, 1850.
Contains a number of interesting English trials of comparatively
recent date, and important bearing on the law of crimes.
Tomlins (Harold Nuttall).
A Digested Index to the Common Law; containing all the points
relating to criminal matters, comprehended in the reports of Black-
stone, Burrow, Cowper, Douglas, Leach's C. L., Lord Raymond,
Salkeld, Strange, Wilson, and the Term Reports, &c. Second
edition. Revised, corrected and enlarged with the addition of such
cases as have been decided since the first publication of the work.
London, 1820.
A convenient index to the criminal cases in the reports above
mentioned.
Tremaine (John).
Placita Coronæ; or Pleas of the Crown, in matters criminal and
civil, containing a large collection of modern precedents. In the
Savoy. Folio (London), 1723.
United States Digest.
Of Decisions in Criminal Cases contained in the Reports of the
Courts of the United States and the several State Courts. By
John L. Hanes. New York, 1856.
A very convenient index to American cases on criminal law,
decided prior to 1856.
Van Leeuwen (Simon).
Commentaries on the Roman Dutch Law. Translated from the
Dutch. London, 1820.
Embraces the subject of penal law.
xcvi
THE PENAL CODE.
Vermont.
The Compiled Statutes of the State of; being such of the
Revised Stautes, and of the public acts, and laws passed since, as
are now in force. To which are prefixed the Constitution, &c.
Compiled in pursuance of an act of the legislature. By Chas. L.
Williams. Burlington, 1851.
The remark made relative to the New Hampshire statutes
applies also to this collection.
Voorhies (Albert).
A Treatise on the Criminal Jurisprudence of Louisiana. 2
vols. bound in 1. New Orleans, 1860.
Virginia.
The Code of-with the Declaration of Independence, &c. Pub-
lished pursuant to an act of the general assembly of Virginia,
passed August 15, 1849. Richmond, 1849.
The remark made relative to the Maryland Code applies equally
to this compilation.
Washington Territory.
Statutes of. Tenth annual session held at Olympia, 1862. Also
containing the Territorial Organic Act, &c. Olympia, 1863.
Contains "an act relative to crimes and punishments," &c.,
eleven chapters of which are occupied with a tolerably comprehen-
sive system of penal law. This volume was not received until after
the Penal Code was substantially completed.
Waterman's (Thomas W.) Archbold.
A Complete Practical Treatise on Criminal Procedure, Pleading
and Evidence, in indictable cases, with minute directions and forms,
for every case that can arise, either at common law, under the
English statute, or under the statutes of the several states; com-
prising the "new system of criminal procedure, pleading, and evi-
dence," by Mr. Archbold, and also the fourteenth and last London
edition of "Archbold's pleading and evidence in criminal cases,
by Messrs. Jervis & Welsby; with comprehensive notes containing
all of the American and English decisions to the date of publica-
tion. Seventh edition. 2 vols. New York, 1860.
A work well known to the American practitioner. Although
its discussions of the nature of crimes are incidental to its main
purpose—the elucidation of procedure and evidence-it has been
found of frequent service as an aid in collating the recent Ameri-
can decisions and statutes.
Wharton (Francis).
Treatise on the Criminal Law of the United States, comprising a
general view of the criminal jurisprudence of the common and civil
law, and a digest of the penal statutes of the general government,
APPENDIX B.
xcvii
and of Massachusetts, New York, Pennsylvania, Virginia and
Ohio, with the decisions or cases arising upon those statutes.
Fifth revised edition. 2 vols. Philadelphia, 1861.
A very comprehensive and valuable work.
Treatise on the Law of Homicide in the United States; to
which is appended a series of leading cases on homicide, now out
of print, or existing only in manuscript. Philadelphia, 1855.
Precedents of Indictments and Pleas adapted to the use both
of the courts of the United States and those of all the several
States. With notes on criminal pleading and practice. Second
and revised edition. Philadelphia, 1857.
State Trials of the United States during the administrations
of Washington and Adams. Philadelphia, 1849.
Wharton (Francis) & Stillè (Morton).
Treatise on Medical Jurisprudence. Philadelphia, 1855.
This work is rich in information of the recent progress of medi-
cal jurisprudence on the continent of Europe. Has been of mate-
rial service upon the few questions connected with this science,
which have arisen in the preparation of the Code.
Wheeler (Jacob D.)
Criminal Law Cases, with notes and references; containing also
a view of the Criminal Laws of the United States from Septem-
ber, 1822 to 1824. 3 vols. New York, 1823-1825.
The first volume of this series contains, principally, reports of
criminal trials in the courts of the city of New York. The second
and third volume contain cases from courts of other States, besides
a tolerably systematic review of the criminal law. The work is,
however, comparatively unimportant at the present day.
Wills (William).
An Essay on the Rationale of Circumstantial Evidence. Illus-
trated by numerous cases. Philadelphia, 1843.
A reprint of an English work. The volume contains an interest-
ing discussion of the force and effect of circumstantial evidence,
with narratives of leading English cases illustrative of the subject.
Although the subject of evidence is excluded from the Penal
Code, yet on some questions relative to presumptions and the
burden of proof, which have arisen collaterally in framing defini-
tions of offenses, this work has been useful.
Wisconsin.
The Revised Statutes of the State of passed and approved,
1858, to which is prefixed the Declaration of Independence, &c.
Printed and published pursuant to law, under the superintendence
of one of the revisers. Chicago, 1858.
The remark made relative to the statutes of Minnesota applies
also to this collection.
APPENDIX C.
TABLE OF STATUTES
SHOWING THE PROPOSED EFFECT OF THE CODE UPON THE
EXISTING LAW.
In this table are mentioned the important provisions of the original
Revised Statutes and subsequent acts of the Legislature, which affect
subjects within the scope of the Penal Code, and are of a public or
general character,* and are still in force.
If the Penal Code contains any provision corresponding to a given
statute, reference is made in the table to the section of the Code cover-
ing the statute. In this class of cases, it is to be understood that
although the previous statute should not be repealed, section 2 of the
Code will prevent any prosecution under it, as to offenses commenced
after the Code takes effect. (See section 2, and note to section 786.)
Such offenses are only punishable so far as the Code permits.
If the statute, though apparently within the scope of the Code, is
one of those which, by sections 783-786, is to remain unaffected-so
that, notwithstanding the passage of the Code, proceedings may be
taken under such statute-or if it is one of those relating to prisons,
which are repealed by the express provisions of section 1070-reference
is made to those sections respectively.
If the statute, although within the scope of the Code, has been
designedly omitted, in preparing it so that after the passage of the
latter there will be no provision of law really corresponding to it-the
reason why it is omitted is briefly indicated.
Acts that have heretofore been repealed are, in general, not men-
tioned in this table, unless there are provisions in the Code correspond-
ing to them in substance. This is often the case where a statute was
repealed by a later one which contained similar provisions.
*Acts operative within particular municipal corporations only, are continued in force
by section 786, subd. 1. But to save space, these are not enumerated in this table.
64
C
THE PENAL CODE.
The Revised Statutes.
1 Rev. Stat., 121, § 31, imposing penalty for acting as officer
without oath or bond.
Covered by section 96 of the Penal Code.
1 Rev. Stat., 124, § 50, relative to refusal of public officer to
deliver books, &c., to his successor.
Covered by section 111.
1 Rev. Stat., 149, §§ 1, 2, relative to perjury at elections.
Covered by sections 150, 162.
1 Rev. Stat., 154, §§ 12-15, relative to powers of legislature to
punish, &c.
Preserved by sections 784, 785.
2 Rev. Stat., 199, § 15, imposing punishment for making false
return of survey.
Covered by section 223.
1 Rev. Stat., 206, § 54, relative to former owner of lands sold
by surveyor-general, returning to resettle upon them.
Covered by the more general provision of section 493.
1 Rev. Stat., 235, §§ 94, 95, relative to drawing water from the
canals.
Covered by section 515.
1 Rev. Stat., 241, § 125, punishing delivery of false bill of lad-
ing on canal.
Covered by section 511.
1 Rev. Stat., 248, §§ 179, 180, relative to abusing canals.
Covered by section 514.
1 Rev. Stat., 311, § 29, relative to contempt of court martial.
All laws of this kind are preserved by section 785.
1 Rev. Stat., 312, §§ 1-11, authorizing military fines and penal-
ties.
All laws of this kind are preserved by section 785.
1 Rev. Stat., 350, § 15, relative to county clerk omitting to
return names of constables.
Covered by section 223.
1 Rev. Stat., 421, § 15, relative to omission of duty by certain
public officers.
Covered by section 215.
1 Rev. Stat., 422-455, containing chapter 14 of part I, entitled
"Of the Public Health."
The commissioners have contemplated the revision of the Health
Laws as a separate body of laws from either of the Codes (See
1
APPENDIX C.
ci
either of the Codes (see note to section 786). The more important
offenses connected with quarantine are, however, covered by sections
435-439; and obstructions or violations of the health laws are made
punishable by sections 440-441.
1 Rev. Stat., 525, §§ 128, 129, relative to injuries to mile
stones, &c.
Covered by section 694.
1 Rev. Stat., 527, § 7, relative to violating recognizance to keep
a ferry.
Covered by section 460.
1 Rev. Stat., 529, §§ 1-40, relative to offenses connected with
auction sales.
This subject is covered by sections 502–510.
1 Rev. Stat., 536, §§ 1-199, relating to the inspection of provi-
sions, produce and merchandize.
The commissioners have contemplated the revision of the Inspec-
tion Laws as a separate body of laws from either of the Codes
(see section 786, note); which is the reason why the penal provi-
sions of the existing statutes are not incorporated in the Code.
1 Rev. Stat., 589, §§ 1-31, relative to acts of directors of corpo-
rations.
The penal provisions of these sections, with others of greater
stringency, are embodied in sections 645-658.
1 Rev. Stat., 635, § 11, relative to confinement of insane persons.
Covered by section 425.
1 Rev. Stat., 658, §§ 8-12, relative to selling or exporting per-
sons as slaves.
Provisions upon this subject are given in sections 272–276.
1 Rev. Stat., 662, §§ 11-13, relative to betting and gaming.
Covered by sections 388-390.
1 Rev. Stat., 664, § 21, allowing certain offenders to be discharged.
Omitted, for reasons stated in note to section 391.
1 Rev. Stat., 665, §§ 22-37, relative to lotteries.
More stringent provisions are contained in sections 370-384.
1 Rev. Stat., 671, § 53, relative to forgery of lottery tickets.
Omitted, for reasons stated in note to section 371.
1 Rev. Stat., 672, § 55; relative to racing for stakes.
Covered by secțion 400.
1 Rev. Stat., 673, § 59, relative to racing in New Utrecht.
Omitted; the general provisions of sections 207, 400 and 472,
on the subject of racing, being deemed sufficient.
cii
THE PENAL CODE.
1 Rev. Stat., 673 and 674, §§ 61-63, relative to profane swearing.
Covered by sections 34-37.
n
1 Rev. Stat., 674, § 64, relative to disturbing religious meetings.
Covered by sections 55 and 56.
1 Rev. Stat., 675, §§ 69-72, relative to observance of Sunday.
Covered by sections 38-52.
1 Rev. Stat., 682, § 25, punishing offenses against the provisions
relative to excise.
See provisions on this subject in sections 723-728.
1 Rev. Stat., 684, § 9, and 685, § 11, relative to management of
steamboats.
See section 729.
1 Rev. Stat., 694, §§ 25, 26, relative to taking or defacing marks
upon wrecked property.
Covered by sections 597 and 420.
1 Rev. Stat., 695, § 4, relative to running horses on highways.
Covered by section 472.
1 Rev. Stat., 696, § 1, and 697, § 3, relative to fires in the woods.
Covered by sections 456; 457.
1 Rev. Stat., 699, § 10, relative to defacing marks upon lumber.
Covered by section 421.
1 Rev. Stat., 711, § 9, relative to pawnbrokers.
Covered by sections 401-403.
1 Rev. Stat., 762, § 35, relative to false acknowledgments of
deeds, &c.
This offense is left to the operation of the general principles
embodied in sections 215, 216, 223.
1 Rev. Stat., 766, § 19, relative to frauds in affairs of limited
partnership.
Covered by section 423.
2 Rev. Stat., 44, § 16, relative to officers suffering escapes.
The criminal punishment, is embraced within section 172; and
the civil penalty is preserved by section 783.
2 Rev. Stat., 140, § 12, relative to solemnizing improper mar-
riages.
Covered by section 424.
2 Rev. Stat., 149, § 7, relative to removing or secreting child to
evade habeas corpus.
Omitted for reasons stated in note to section 429.
2 Rev. Stat., 267, § 234, relative to constables receiving rewards.
See sections 171-174 and 215.
1
APPENDIX C.
oiii
2 Rev. Stat., 267, §§ 235, 236, relative to buying demands, &c.,
by justices and constables.
Covered by sections 195, 196.
2 Rev. Stat., 278, §§ 10-15, relative to punishment for contempt.
The power of the court to punish by attachment is preserved by
section 785. Punishment upon conviction on indictment is pro-
vided for by section 201. And see sections 740, 741.
2 Rev. Stat., 287, §§ 68-74, relative to certain offenses by
attorneys.
ז'
Covered by sections 209, 210 and 194–198.
2 Rev. Stat., 288, §§ 75-82, relative to evidence of buying de-
mands illegally.
See section 200, and note.
2 Rev. Stat., 291, § 95, relative to selling liquor in court houses.
Covered by section 208.
2 Rev. Stat., 428, § 11, relative to certain violations of duty by
sheriffs.
The right to recover damages here conferred is preserved by
section 783 of the Code; but the provision for criminal punish-
ment is omitted as unnecessary in view of sections 215 and 216.
2 Rev. Stat., 431, § 29, relative to sale of liquor in jails.
See section 208.
2 Rev. Stat., 438, § 65, relative to voluntary escapes.
Covered by section 172.
2 Rev. Stat., 534, §§ 1-37, relative to contempt of court.
Preserved by section 785. Punishment of contempts upon con-
viction on indictment is provided for by section 201. See also sec-
tions 740, 741.
2 Rev. Stat., 550, § 1, relative to unauthorized suits.
See section 219.
2 Rev. Stat., 571, §§ 60-64, of violations of habeas corpus act.
See sections 426-429.
2 Rev. Stat., 650, §§ 5-7, relative to taking excessive fees.
Covered by sections 102, 104.
2 Rev. Stat., 656, § 1, enumerating crimes punishable with death.
Covered by sections 60, 247 and 539.
2 Rev. Stat., 656, § 2, defining "treason."
Covered by sections 57–59.
2 Rev. Stat., 656, § 3, relative to outlawry for treason.
Omitted, for reason stated in note to section 59.
2 Rev. Stat., 656, §§ 4-7, relative to murder.
Covered by sections 236, 241, 246, 738 and 739.
CIV
THE PENAL CODE.
2 Rev. Stat., 657, § 8, abolishing petit treason.
See section 239.
2 Rev. Stat., 657, §§ 9 and 10, defining arson in first degree.
Covered by sections 532, 533.
2 Rev. Stat., 660, §§ 2-4, defining justifiable and excusable
homicide.
Covered by sections 260–262.
2 Rev. Stat., 661, § 5, prescribing verdict in cases of justifiable
and excusable homicide.
Omitted, as belonging to procedure.
2 Rev. Stat., 661-663, §§ 7-21, relative to manslaughter.
Covered by sections 234, 248–259.
2 Rev. Stat., 663, §§ 22-26, relative to rape, abduction, &c.
Covered by sections 319-329.
2 Rev. Stat., 664, § 27, relative to mayhem.
Covered by sections 263–271.
2 Rev. Stat., 664, §§ 28-32, relative to kidnapping.
Covered by sections 272–274.
2 Rev. Stat., 665, § 33, relative to, place of trial for kidnapping.
Omitted as belonging to procedure. See Code of Cr. Pro., § 134.
2 Rev. Stat., 665, §§ 34, 35, relative to decoying and abandon-
ing children.
Covered by sections 337 and 332 respectively.
2 Rev. Stat., 665, § 36, relative to certain assaults.
Covered by sections 278 and 290.
2 Rev. Stat., 665, §§ 37, 38, relative to poisoning.
Covered by sections 277-405.
2 Rev. Stat., 666, § 39, relative to assaults with intent, &c.
See sections 279-291.
2 Rev. Stat., 666, 667, §§ 1-9, of arson.
This subject is provided for by sections 521-539. See also, sec-
tion 703.
2 Rev. Stat., 668, §§ 10-21, of burglary.
This offense is provided for by sections 540-552.
2 Rev. Stat., 670, §§ 22-47, of forgery.
These provisions, with some additional ones, are embodied in
sections 553-583.
2 Rev. Stat., 676, §§ 48-54, relative to false personations and
cheats.
Covered by sections 620-627, and 212, 213, except that section
49 of the Rev. Stat. is omitted as appertaining to procedure.
APPENDIX C.
CY
2 Rev. Stat., 677, §§ 55-57, of robbery.
Covered, with some additional provisions, by sections 280, 289.
2 Rev. Stat., 678, § 58, relative to threatening letters.
See section 618.
2 Rev. Stat., 678, §§ 59-62, of embezzlement.
More extensive provisions, in which these are included, are con-
tained in sections 601-612.
2 Rev. Stat., 679, §§ 63-66, of grand larceny.
Covered by sections 587, 589, 591, 593.
2 Rev. Stat., 679, § 67, of stealing lottery tickets.
Omitted for reasons stated in note to section 594.
2 Rev. Stat., 680, § 68, relative to severing parts of the realty.
See section 596.
2 Rev. Stat., 680, §§ 69, 70, relative to stealing records.
Covered by sections 147, 148.
2 Rev. Stat., 680, § 71, of receiving stolen goods.
Covered by section 598.
2 Rev. Stat., 680, § 72, relative to prosecutions for receiving.
Omitted for reasons stated in the note to section 598.
2 Rev. Stat., 682, §§ 9-12, of bribery, &c.,
See sections 98, 99, 120, 121, 125-131.
2 Rev. Stat., 681, §§ 1-7, of perjury.
These provisions, with some additional ones, are contained in
sections 150-164.
2 Rev. Stat., 681, § 8, of attempting to suborn a witness.
See section 170.
2 Rev. Stat., 684, §§ 13-24, relative to escapes, &c.
See sections 136-146, 172, 173, 215.
2 Rev. Stat., 686, §§ 1-7, of dueling.
Covered by sections 294-297, 301-303, except section 7, which
pertains to procedure.
2 Rev. Stat., 687, §§ 8-12, of bigamy, &c.
Covered by sections 338-342, except section 10, which is omitted
as belonging to procedure. Sec Rep. Code Cr. Pr., § 135.
2 Rev. Stat., 688, §§ 13-15, relative to disinterment, &c.
More comprehensive provisions are contained in sections 345-362.
2 Rev. Stat., 689, § 16, relative to poisoning animals.
Covered by section 698.
2 Rev. Stat., 689, §§ 17, 18, relative to compounding felonies.
Covered by section 183.
cvi
THE PENAL CODE.
1
!
ر
2 Rev. Stat., 689, § 20, of sodomy.
Covered by section 343.
2 Rev. Stat., 690, § 1, relative to petit larceny.
See sections 586-590.
2 Rev. Stat., 690, § 2, of attempts at extortion.
See section 619.
2 Rev. Stat., 690, § 3, of fraudulent assignments.
Covered by section 641.
2 Rev. Stat., 691, § 4, of concealments of property by insolvents.
Covered by section 206.
2 Rev. Stat., 691, §§ 5-7, of buying lands in suit, &c.
Covered by sections 187-189.
2 Rev. Stat., 691, §§ 8, 10, of conspiracy.
Covered by sections 224 and 226, except that section 9 is omitted
for reasons stated at the end of note to section 224.
2 Rev. Stat., 692, § 11, relative to false arrests.
Covered by section 175.
2 Rev. Stat., 692, § 12, relative to compounding misdemeanors.
Covered by section 183.
2 Rev. Stat., 692, § 13, relative to racing near a court.
Covered by section 207.
2 Rev. Stat., 692, § 14, prescribing punishment for criminal con-
tempts.
Covered by section 201.
2 Rev. Stat., 693, § 15, relative to certain trespasses.
See section 707.
2 Rev. Stat., 693, § 16, relative to corrupting jurors, &c.
See section 131.
2 Rev. Stat., 693, § 17, relative to misconduct of jurors.
Covered by section 128.
2 Rev. Stat., 693, § 18, relative to misconduct in drawing jurors.
Covered by section 132.
2 Rev. Stat., 694, § 20, relative to posting for refusing a challenge.
Covered by section 300.
2 Rev. Stat., 694, § 22, relative to acts of intoxicated physicians.
Covered by section 404.
2 Rev. Stat., 694, § 23, relative to selling poisons.
See provisions on this subject in sections 445-448.
2 Rev. Stat., 694, § 24, relative to overloading vessels.
Covered by section 406.
•
ovii
APPENDIX C.
2 Rev. Stat., 694, § 25, relative to negligence in management of
steamboats.
Covered by section 407.
2 Rev. Stat., 695, § 26, relative to cruelty to animals.
Covered by section 699.
2 Rev. Stat., 695, §§ 27-29, relative to opening sealed letters.
Sections 27 and 28, are covered by sections 717 and 718 of the
Code. Section 29 is omitted, and the cases contemplated are left
to the operation of sections 738 and 739.
2 Rev. Stat., 695, § 30, relative to destroying bridges, &c.
Covered by section 693.
2 Rev. Stat., 695, § 31, relative to destroying dams, &c.
Covered by section 711.
2 Rev. Stat., 695, § 32, relative to removing land marks.
Covered by section 709.
2 Rev. Stat., 696, § 33, relative to injuring mile stones, &c.
Covered by section 694.
2 Rev. Stat., 696, § 34, relative to auctioneers omitting to render
account.
Covered by section 509.
2 Rev. Stat., 696, §§ 35-37, relative to selling offices.
Covered by sections 106-109.
2 Rev. Stat., 696, § 38, relative to willful neglect of official duty.
Covered by section 215.
2 Rev. Stat., 696, § 39, declaring performance of prohibited act
a misdemeanor.
Covered by section 216.
2 Rev. Stat., 696, § 40, prescribing a general punishment for mis-
demeanors.
See section 14.
2 Rev. Stat., 697, § 2, exempting insane persons.
See section 16, subd. 4.
2 Rev. Stat., 698, § 3, relative to attempts.
See sections 745-747.
2 Rev. Stat., 698, § 4, relative to stealing in another State.
See section 15, subd. 2, and note.
2 Rev. Stat., 698, § 5, relative to former acquittal abroad.
See sections 738, 739.
2 Rev. Stat., 698, §§ 6, 7, relative to principals and accessories.
See sections 26-30.
65
cviii
THE PENAL CODE.
2 Rev. Stat., 698, §§ 8-11, relative to second offenses.
See sections 748-753.
2 Rev. Stat., 700, § 12, relative to imprisonment for life.
Covered by section 753.
2 Rev. Stat., 700, § 13, authorizing fines.
Covered by section 756.
2 Rev. Stat., 701, §§ 19-22, relative to effect of convictions.
See sections 757-760.
2 Rev. Stat., 702, § 26, relative to attempts.
See section 745.
2 Rev. Stat., 702, § 29, avoiding lease of house let for a bawdy
house.
See a more stringent provision in section 369 of the Code.
2 Rev. Stat., 702, §§ 30-32, defining "felony," "infamous crime,"
and "crime" or "offense."
See sections 3-6.
2 Rev. Stat., 702, §§ 33 and 34, defining "property" and "per-
sonal property."
See sections 774-776.
2 Rev. Stat., 703, § 35, relative to term "person."
See section 778.
2 Rev. Stat., 703, § 36, relative to intent to defraud.
See section 782.
2 Rev. Stat., 735, § 18, relative to rape and crime against nature.
Covered by sections 321 and 344.
Laws of 1829, ch. 94.
An act to create a fund for the benefit of the creditors of certain
moneyed corporations, and for other purposes. Passed April 2,
1829.
Section 29 provides a penalty for false statements relative to
affairs of moneyed corporations. Its provisions, somewhat ex-
tended, are covered by sections 646 and 656 of the Code.
Laws of 1829, ch. 139.
An act directing the manner of choosing electors of president
and vice-president. Passed April 15, 1829.
As to the offenses designated in sections 16 and 17, see sections
716, and sections 215 and 216, of the Penal Code.
APPENDIX C.
cix
Laws of 1829, ch. 270.
An act for the prevention of masquerades. Passed April 25,
1829.
See section 480.
Laws of 1829, ch. 313.
An act to incorporate the president, directors and company of
the Merchants' and Mechanics' Bank in the city of Troy. Passed
April 29, 1829.
Section 19 declares false swearing in the affidavit required by
the act, that the requisite capital has been paid in, to be perjury.
This is covered by the more general provision of section 150 of
the Code.
Substantially the same provision occurs, again and again, in
subsequent acts relative to moneyed corporations. To save space
these acts are not enumerated in the table. The general principle
upon which acts of this character are embraced in one general
section, is fully explained in the note to section 150.
Laws of 1829, ch. 368.
An act in relation to the appraisal of damages on the canals and
for other purposes. Passed May 4, 1829.
So much of section 1, as declares certain false swearing perjury,
is covered by the more general provision of section 150 of the
Code.
Laws of 1829, ch. 373.
An act to preserve the purity of elections. Passed May 5,
1829.
See sections 65 and 66.
Laws of 1830, ch. 320.
An act to amend certain provisions of the Revised Statutes,
and in addition thereto. Passed April 20, 1830.
As to section 58, relative to manslaughter by causing death of
woman or child in attempting to procure miscarriage, see the
more stringent provision of section 250 of the Code.
Laws of 1832, ch. 51.
An act in relation to the Troy Water Works Company, and for
insuring to the city of Troy a supply of water for the extinguish-
ment of fires and other purposes. Passed March 20, 1832.
As to section 6, making it a misdemeanor to injure certain
water-works, see the more general provisions of section 722 of the
Code.
CX
THE PENAL CODE.
Laws of 1832, ch. 162.
An act to incorporate the New York and Albany Railroad Com-
pany. Passed April 17, 1832.
Section 13 makes it a misdemeanor to injure buildings, &c.,
of the company. This offense is covered by the more general
provisions of sections 690, 695 of the Code.
Substantially the same provision, with section 13, above men-
tioned, occurs in a number of later acts relative to railway and
other public works owned and operated by corporations. To save
space these provisions are not enumerated in this table.
Laws of 1833, ch. 170.
An act to regulate sales at auction in the village of Canandaigua.
Passed April 19, 1833.
Section 3, requires sales, except of books and prints to be in the
day. In section 508 of the Code the commissioners have em-
bodied this principle, applying it to such localities as seemed to
them judicious.
Laws of 1833, ch. 230.
An act to prevent the introduction of foreign convicts. Passed
April 25, 1833.
Covered by section 214.
Laws of 1833, ch. 260.
An act relative to the forgery of foreign bank bills. Passed
April 29, 1833.
See section 559.
Laws of 1833, ch. 281.
An act to prevent persons from transacting business under ficti-
tious names. Passed April 29, 1833.
Covered by section 409.
Laws of 1834, ch. 201.
An act respecting the salt springs in the county of Onondaga,
and regulating the manufacture of salt therein. Passed April 28,
1834.
Section 7, declaring certain false swearing to be perjury, is
covered by section 150 of the Code.
Laws of 1834, ch. 281.
An act to provide for the public security. Passed May 5, 1834.
Covered by section 519.
$
APPENDIX C.
cxi
Laws of 1835, ch. 62.
An act to amend part first, title first of chapter seventeenth of
the Revised Statutes, entitled "Of the regulation of trade in cer-
tain cases." Passed April 11, 1835.
The subject of the act is auction sales; as to which see sec-
tions 502 and 510 of the' Code.
Laws of 1835, ch. 110.
An act to prohibit the sale of ardent spirits to the St. Regis
Indians. Passed April 20, 1835.
Covered by the more general provisions of section 724.
Laws of 1835, ch. 304.
An act to amend the act relating to the militia and public
defense. Passed May 11, 1835.
The penalties authorized by this act are preserved by section 785.
Laws of 1836, ch. 171.
An act relative to state prisons. Passed April 23, 1836.
The act itself was repealed by Laws of 1847, ch. 460, § 160.
See note to section 1070 of the Code. The rule relative to sen-
tences prescribed by section 6 of the act is, however, continued, in
a form modified to correspond with later statutes, by section 754
of the Code.
Laws of 1837, ch. 150.
An act authorizing a loan of certain moneys belonging to the
United States, deposited with the State of New York for safe
keeping. Passed April 4, 1837.
Section 42, of the act declaring certain false swearing perjury,
is covered by section 150 of the Code.
Laws of 1837, ch. 184.
An act for the licensing and government of the pilots of the port
of New York, by the way of Sandy Hook. Passed April 12, 1837.
So much of the act as punishes unlicensed piloting, is covered
by section 442.
The provisions of the act which authorize a pilot to be deprived
of his license, with other portions of the act, remain unaffected
by the Code.
Laws of 1837, ch. 235.
An act to regulate the distribution of bank stock. Passed
April 22, 1837.
cxii
THE PENAL CODE.
The provision of section 7, declaring certain false swearing per-
jury, is covered by section 150 of the Code.
Laws of 1837, ch. 430.
An act to prevent usury. Passed May 15, 1837.
Section 6, of the act declaring the receipt of usury a misde-
meanor, is covered by section 426 of the Code; the punishment
being modified.
So much of section 8 as makes false swearing, upon an exami-
nation under the act, perjury, is covered by section 150.
Laws of 1837, ch. 457.
An act to amend the Revised Statutes in relation to escapes
from prisons, and assisting therein. Passed May 16, 1837.
On this subject, see sections 136–146.
Laws of 1838, ch. 52.
An act authorizing any citizen of the State of New York to
become an auctioneer. Passed February 28, 1838.
The system of provisions recommended by the commissioners
relative to offenses peculiar to the vocation of auctioneers will be
found in sections 502-510.
Laws of 1838, ch. 160.
An act to punish willful injuries to railroads. Passed April 6,
1838.
Covered by sections 690, 691.
Laws of 1839, ch. 112.
An act to protect Hudson and Poughkeepsie from fires from
steamboats. Passed March 29, 1839.
Covered by section 729.
Laws of 1839, ch. 153.
An act to incorporate the Long Island Rural Cemetery. Passed
April 10, 1838.
Section 10 of the act declares it a misdemeanor to destroy, &c.,
monuments, plants, &c., within the cemetery of the company.
For provisions on this subject equally applicable to all cemeteries,
see sections 361, 696, 702, 707, 720.
Substantially the same provision with section 10, above men-
tioned, occurs in some later acts incorporating cemetery companies.
To save space these provisions are not enumerated in this table.
APPENDIX C.
cxiii
Laws of 1839, ch. 355.
An act concerning foreign bank notes. Passed May 7, 1839.
Preserved by section 786, subd. 3.
Laws of 1840, ch. 225.
An act to extend the right of trial by jury. Passed May 6, 1840.
As to several offenses corresponding to various sections of this
act, see sections 105, 271, 276, and 427–429.
Laws of 1840, ch. 363.
An act to amend the act entitled "an act to authorize the busi-
ness of banking." Passed May 14, 1840.
Preserved by section 786, subd. 4.
Laws of 1841, ch. 183.
An act in relation to the Onondaga and Montezuma Salt Springs.
Passed May 10, 1841.
It seems so probable that this act was intended to be superseded
by Laws of 1859, ch. 346, that the commissioners have made no
special provision corresponding with section 16. But see section
224, subd. 5.
Laws of 1841, ch. 292.
An act to prevent fraudulent practices in the management of
moneyed incorporations, and to provide for a prompt replenishing
of the safety fund. Passed May 26, 1840.
As to the offenses provided for by sections 1-4 of the act, see
sections 651-653 of the Code.
Laws of 1841, ch. 301.
An act concerning elections in cities other than New York.
Passed May 26, 1841.
Section 9 of the act, declaring certain false swearing perjury, is
covered by section 150 of the Code.
Laws of 1842, ch. 130.
An act respecting elections other than for militia and town offi-
Passed April 5, 1842.
cers.
This act contains a number of penal provisions looking towards
the protection of the purity of elections. Most of them are
embodied, with such modifications as seemed advisable in sections
61-95 of the Code. Section 18 of title VII of the act, is covered
by section 716.
cxiv
THE PENAL CODE.
Laws of 1842, ch. 215.
An act in relation to burying grounds. Passed April 11, 1842.
Provisions deemed sufficient to protect burying grounds from
disturbance are embraced in sections 350, 351 and 355–361.
Laws of 1842, ch. 247.
An act to provide for the prompt redemption of the circulating
notes of insolvent safety fund banks; to restrict the liability of
the safety fund, and for other purposes. Passed April 12, 1842.
Sections 10 and 11 of the act relative to certain dealings by
bank officers, are covered by sections 651 and 652 of the Code.
Laws of 1843, ch. 57.
An act to prohibit members of common councils of cities, towns,
trustees of villages and supervisors of towns to be interested in
certain contracts. Passed March 20, 1843.
See as to sections 1-3 of this act, section 501 of the Code; as
to section 4, section 150.
Laws of 1845, ch. 3.
An act to prevent persons appearing disguised and armed.
Passed February 28, 1845.
Section 1, declaring certain persons vagrants, is expressly pre-
served by section 785 of the Code.
Sections 2, 3 and 5, relate to procedure and are unaffected by
the Code.
Section 4 is deemed covered, so far as is expedient, by sections
177 and 178 of the Code.
Section 6 is the basis of section 478 of the Code.
As to section 7, see section 475 of the Code, subd. 3.
Laws of 1845, ch. 69.
An act to enforce the laws and preserve order. Passed April
15, 1845.
Section 17 declares it a misdemeanor to resist the execution of
process. For provisions upon this offense see sections 100, 101,
177, 178, 201, subds. 4 and 5, 214, subd. 5.
Section 18, of the act declaring a penalty for resisting execution
of process after proclamation by the governor, is covered by sec-
tion 179 of the Code.
APPENDIX C.
CXV
Laws of 1845, ch. 201.
An act to preserve certain waters from the effects of gas tar and
refuse of gas houses and factories. Passed May 13, 1845.
Covered by the more general provisions of section 434.
Laws of 1845, ch. 228.
An act to prevent the disturbance of evening schools in the
several school district houses of this state. Passed May. 13,
1845.
A severe penalty is denounced for this species of offense, by
the more general provision of section 473.
Laws of 1845, ch. 260.
An act to punish the procurement of abortion, and for other
purposes. Passed May 14, 1845.
For provisions corresponding to the various sections of this act,
but more stringent in some details, see sections 250, 334, 335, 336
and 749.
Laws of 1846, ch. 22.
An act to amend the "act to punish the procurement of abor-
tion, and for other purposes," passed May 13, 1845. Passed March
4, 1846.
See section 250.
Laws of 1846, ch. 62.
An act in relation to duties on goods sold at public auction, and
to the bonds of auctioneers. Passed April 11, 1846.
As to offenses by auctioneers, such as are designated by section
8 of the act, see section 502 of the Code.
Laws of 1846, ch. 120.
An act in relation to district attorneys, and to prevent their law
partners from acting as counsel in certain cases. Passed April 30,
1846.
Covered by sections 730, 731.
Laws of 1846, ch. 241.
An act in relation to the keeping of gunpowder, saltpetre, and
certain other substances, in the city of New York. Passed May
13, 1846.
Violations of this act, and of laws or ordinances relative to
gunpowder affecting other places than New York city, are made
punishable by sections 258 and 433.
66
cxvi
THE PENAL CODE.
Laws of 1846, ch. 300.
regulations in the nature of
Passed May 13, 1846.
An act concerning quarantine, and
quarantine, at the port of New York.
The commissioners have contemplated the revision of the Health
Laws as a separate body of laws from either of the Codes (see
note to section 786). The more important offenses connected with
quarantine are, however, covered by sections 435-439 ; and
obstructing the execution of or violating the Health Laws as they
may exist from time to time, is made punishable by sections 440,
441
Laws of 1846, ch. 324.
An act in relation to the Clinton State Prison. Passed May 13,
1846.
This act made provision for insane convicts. A different sys-
tem, conformable to more recent legislation, is embodied in sections
1048-1057.
Laws of 1847, ch. 69.
An act concerning the pilots of the channel of the East river,
commonly called Hellgate. Passed April 15, 1847.
As to piloting through Hellgate channel, without license,
declared misdemeanor by section 8 of the act, see section 442 of
the Code.
Laws of 1847, ch. 86.
An act to authorize the agent of the state prison at Auburn to
build an armory for the use of the Auburn Guards; to sell cer-
tain lands belonging to the state; to inclose the state land adjoin-
ing the prison; to lay a walk, and for other purposes. Passed
April 19, 1847.
Section 4 of the act relating to inquiry to be made into former
trade or business of criminals, upon conviction, was repealed by
section 160 of Laws of 1847, ch. 460; but the same principle was
continued in section 70 of the latter act, which is embodied in sec-
tion 991 of the Code; but should be transferred to the Code of
Criminal Procedure.
Laws of 1847, ch. 133.
An act authorizing the incorporation of rural cemetery associa-
tions. Passed April 27, 1847.
Section 8 of the act declares it a misdemeanor to destroy monu-
ments, plants, &c., within cemeteries. For provisions on this
subject, see sections 361, 696, 702, 707, 720.
APPENDIX C.
cxvii
Laws of 1847, ch. 205.
An act for the organization of the first division of the New
York State militia. Passed May 6, 1847.
The organization of the militia is now chiefly regulated by later
laws. As to such offenses as are indicated by section 16 of this
act, see sections 519 and 696 of the Code.
As to neglect of duty by civil officers, such as is designated in
section 38 of the act, see section 215 of the Code.
All existing laws authorizing military penalties are preserved
by section 785.
Laws of 1847, ch. 207.
An act in relation to the sale of bottles used by the manufac-
turers of mineral waters and others. Passed May 7, 1847.
Provisions relative to refilling stamped bottles, corresponding to
Laws of 1860, ch. 117, are given in sections 417-419 of the Code.
Laws of 1847, ch. 240.
An act to amend the act entitled, "an act respecting elections
other than for militia and town officers," passed April 5, 1842.
Passed May 8, 1842.
As to sections 15 and 16 of the act, relative to unauthorized
voting, see sections 74 and 89 of the Code.
Laws of 1847, ch. 280.
An act in relation to the judiciary. Passed May 12, 1847.
As to section 79, declaring certain false swearing perjury, see
section 150 of the Code.
Laws of 1847, ch. 290.
An act to provide for the enrollment of the militia and to
encourage the formation of uniform companies, excepting the first
military division of this state. Passed May 13, 1847.
The organization of the militia is now chiefly regulated by later
laws. As to such offenses as are indicated by section 36 of this
act, see sections 519 and 696 of the Code.
All existing laws authorizing military penalties are preserved
by section 785.
Laws of 1847, ch. 365.
An act to amend the act for the protection and improvement of
the Seneca Indians residing on the Cattaraugus and Allegany
reservations in this state. Passed November 15, 1847.
cxviii
THE PENAL CODE.
All existing laws relative to Indians are preserved by section
785 of the Code.
As to section 16 of the act, declaring certain false swearing per-
jury, see sections 150, 162 of the Code.
Laws of 1847, ch. 432.
An act in relation to the fees and compensation of certain officers
in the city and county of New York. Passed December 10, 1847.
Existing laws relative to municipal corporations are preserved
by section 786 of the Code, subd. 1.
As to a public officer neglecting to account for fees, provided for
by section 12 of the act, see sections 215 and 497, 498 of the Code.
Laws of 1847, ch. 460.
An act for the better regulation of the county and state prisons
of the state, and consolidating and amending the existing laws in
relation thereto. Passed December 14, 1847.
This act forms the basis of title XIX of the Code. The provi-
sions of the later acts on the same subject, together with such
amendments of the laws as the commissioners have thought it
well to suggest, are incorporated with the provisions of the act
of 1847 still in force, and a new arrangement of the whole, pre-
sented in that title. The act itself is repealed by section 1070,
subd. 1.
Laws of 1847, ch. 462.
An act to authorize parties in civil suits, at their election, to
obtain the testimony of the adverse party. Passed December 14,
1847.
As to section 4 of the act declaring certain false swearing
perjury, see section 150 of the Code
Laws of 1847, ch. 470.
An act to amend an act entitled "an act in relation to the
judiciary." Passed May 12, 1847.
As to section 47 of the act, extending provisions of law relative
to buying of claims by attorneys, to persons who prosecute in per-
son, see section 199 of the Code.
Laws of 1847, ch. 497.
An act in relation to the transportation of convicts to the state
prisons and houses of refuge.
See different provisions of this subject in 792-796. The act is
repealed by section 1070, subd. 2.
1
APPENDIX C.
CXIX
Laws of 1848, ch. 105.
An act to punish abduction as a crime. Passed March 20, 1848.
See section 328.
Laws of 1848, ch. 111.
An act to punish seduction as a crime. Passed March 22, 1848.
See sections 330, 331.
Laws of 1848, ch. 154.
An act to incorporate the Utica water works company. Passed
March 31, 1848.
As to section 17 making it a misdemeanor to injure certain
water works, see the more general provisions of sections 696, 712
and 722 of the Code.
Laws of 1848, ch. 219.
*
An act for the protection of emigrants arriving in the State of
New York. Passed April 11, 1848.
All acts relating to emigrants, &c., are preserved by section
786, subd. 2.
Laws of 1848, ch. 229.
An act in relation to the court of sessions of the county of
Jefferson.
This act, which confirms certain sentences to imprisonment in
Clinton state prison, is unaffected by the Code.
Laws of 1848, ch. 265.
An act to provide for the incorporation and regulation of tele-
graph companies. Passed April 12, 1848.
As to section 7 of the act making it misdemeanor to injure
telegraph property, see sections 695, 696 of the Code.
Laws of 1848, ch. 294.
An act to amend the act for the better regulation of the county
and state prisons of the state.
This act relates to insane convicts. See provisions as to their
custody, conformable to later laws, in sections 1048-1058 of the
Code. The act of 1848 referred to, is repealed by section 1070
of the Code, subd. 3.
Laws of 1849, ch. 115.
An act to make the clerk's office of Erie county a salaried office.
Passed March 21, 1849.
CXX
THE PENAL CODE.
As to section 19 of the act, declaring certain false swearing
perjury, see section 150 of the Code.
ws of 1849, ch. 123.
An act fixing the fees of sheriffs for transporting convicts to
the state prisons. Passed March 22, 1849.
See section 792.
Laws of 1849, ch. 132.
An act in relation to the removal of convicts from one state
prison to another. Passed March 26, 1849.
Covered by section 797.
Laws of 1849, ch. 133.
An act authorizing the inspectors of state prisons to administer
oaths and take affidavits in certain cases.
1849.
See sections 842 and 843.
Laws of 1849, ch. 141.
Passed March 26,
An act in relation to Sing Sing prison. Passed March 27, 1849.
The act is repealed by section 1070, subd. 4. The subjects
covered by sections 2 and 5 and 6 of the act, the only ones
deemed of a permanent character, are provided for by section 2,
section 789 of the Code; section 5 of the act by sections 847,
subd. 7, and 947 of the Code; and section 6 of the act by section
854 of the Code, subd. 14.
Laws of 1849, ch. 254.
An act to amend "an act for the organization of the first divi-
sion of the New York State militia." Passed April 7, 1849.
The organization of the militia is now chiefly regulated by later
laws. As to such offenses as are indicated by section 24 of this
act, see sections 519 and 696 of the Code.
As to the various neglects of duty by civil officers, see section
215.
All existing laws authorizing military penalties are preserved
by section 785.
Laws of 1849, ch. 278.
An act to prevent the manufacture, use and sale of slung shot.
Passed April 7, 1849.
Covered by sections 453, 454.
APPENDIX C.
cxxi
Laws of 1849, ch. 280.
An act making appropriations for Clinton prison. Passed April
7, 1849.
Unaffected by the Code.
Laws of 1849, ch. 282.
An act to protect the woodlands in Suffolk county against des-
truction by fire. Passed April 7, 1849.
The general provision of section 456 is deemed broad enough
upon this subject, so far as the criminal remedy is concerned. The
remedy by damages given by section 2 of the act, is unaffected by
the Code. See section 783.
Laws of 1849, ch. 321.
An act to amend an act entitled "an act for the protection of
emigrants arriving in the State of New York," passed April 11,
1848.
All existing laws relating to emigrants, &c., are preserved by
section 786, subd. 2.
Laws of 1849, ch. 331.
An act to amend "An act for the better regulation of the
county and state prisons of the state, and consolidating and
amending the existing laws in relation thereto," passed December
14, 1847. Passed April 10, 1849.
This act is repealed by section 1070 of the Code, subd. 8. The
provisions of section 2 of the act, are embodied in section 1046.
Laws of 1849, ch. 426.
An act to incorporate the Watertown Waterworks company.
Passed April 11, 1849.
Section 17 of the act, declaring malicious injury to works of the
company a misdemeanor, is covered by the general provisions of
section 722 of the Code.
Substantially the same provision occurs in later acts incorporat-
ing aqueduct companies. To save space, these acts are not
enumerated in this table.
Laws of 1850, ch. 24.
An act in relation to juvenile delinquents. Passed February
26, 1850.
Section 2 is repealed by section 1070, subd. 9, of the Code. Its
provisions are embodied in section 801.
cxxii
THE PENAL CODE.
Laws of 1850, ch. 123.
An act to amend an act passed May 14, 1845, entitled “An act
to punish and prevent frauds in the use of false stamps and labels."
Passed April 1, 1850.
This act was repealed by Laws of 1862, ch. 306; but the sub-
ject is covered by sections 410-416 of the Code.
Laws of 1850, ch. 140.
An act to authorize the formation of railroad corporations, and
to regulate the same. Passed April 2, 1850.
Sections 38, 41 and 42 of the act are covered, respectively, by
sections 463, 462 and 461 of the Code.
Laws of 1850, ch. 251.
An act to amend the act entitled "An act to amend, the act
entitled an act to authorize the business of banking," passed May
14, 1840. Passed April 10, 1850.
Preserved by section 786, subd. 5.
Laws of 1850, ch. 306.
An act making an appropriation for Clinton prison. Passed
April 10, 1850.
As to section 3 of the act, see section 900 of the Code.
Laws of 1850, ch. 324.
An act for the preservation of the public health. Passed April
10, 1850.
The commissioners have contemplated the revision of the
Health Laws as a separate body of laws from either of the Codes.
(See section 786, note.) A general provision punishing violations
of these laws, is contained in section 441.
Laws of 1850, ch. 338.
An act in relation to the penitentiary in the county of Onondaga.
Passed April 10, 1850.
Unaffected by the Code.
Laws of 1850, ch. 32.
An act relative to the penitentiary of Onondaga county. Passed
March 11, 1851.
Unaffected by the Code.
APPENDIX C.
cxxiii
Laws of 1851, ch. 102.
An act to preserve the purity of certain streams used to supply
the city of Albany with water. Passed April 8, 1851.
This act is deemed sufficiently covered by the more general pro-
visions of sections 430-434. The special power conferred on the
common council of Albany by section 3 of the act, is however,
preserved by section 786 of the Code, subd. 1.
Laws of 1851, ch. 144.
An act amending the Revised Statutes in relation to obtaining
money under false pretenses. Passed April 11, 1851.
See section 624.
Laws of 1851, ch. 180.
An act for the enrollment of the militia, to abolish militia fines in
certain cases, and exempt members of uniformed companies from
working on highways and serving on juries. Passed April 16, 1851.
As to such neglect of official duty as is defined in section 14 of
the act, see section 215 of the Code.
Laws of 1851, ch. 182.
An act to amend title six, chapter one, part four of the Revised
Statutes, entitled "Of offenses punishable by imprisonment in a
county jail and by fines." Passed April 16, 1851.
See section 707, subd. 4 and 5.
Laws of 1851, ch. 259.
An act making appropriations for the Clinton state prison, and
amendatory of section six of chapter seventy of the Laws of
1845. Passed June 20, 1851.
As to section 4 of the act, see section 808 of the Code.
Laws of 1851, ch. 388.
An act to incorporate the Buffalo Suspension Bridge company.
Passed July 3, 1851.
As to section 11 of the act, relative to injuries to the bridge,
&c., of the company, see sections 692, 696 of the Code.
Substantially the same provision occurs in later acts incorporating
bridge companies. To save space, these acts are not enumerated
in this table.
Laws of 1851, ch. 504.
An act more effectually to suppress gambling. Passed July 10,
1851.
See sections 392-399.
67
cxxiv
THE PENAL CODE.
Laws of 1852, ch. 165.
An act in relation to indictments for libel, and the trial thereof.
Passed April 7, 1852.
་
Omitted, as belonging to procedure.
Laws of 1853, ch. 138.
An act to punish gross frauds and to suppress mock auctions.
Passed April 9, 1853.
As to section 2 of the act, see sections 627 and 737.
Laws of 1853, ch. 183.
An act requiring the police justices in the city of New York to
file records of all convictions of vagrancy. Passed April 12, 1853.
Preserved by section 786, subd. 6.
Laws of 1853, ch. 185.
}
An act to provide for the care and instruction of idle and
truant children. Passed April 12, 1853.
Preserved by section 786, subd. 7.
Laws of 1853, ch. 223.
An act to amend an act entitled "an act concerning foreign
bank notes." Passed April 13, 1853.
Preserved by section 786, subd. 8.
Laws of 1853, 279.
An act for the construction of a workhouse in the county of
Monroe. Passed May 27, 1853.
Section 12 of the act relative to escapes from the workhouse,
is embraced in the more general provisions of sections 139–146 of
the Code.
Laws of 1853, ch. 539
An act to amend the existing law relating to bribery. Passed
July 18, 1853.
This act treats of the bribery of all classes of officers together.
In the Code the provisions relative to bribery of various officers
are stated in connection with provisions on other subjects, relative
to the officers respectively. See sections 61, 98, 99, 120, 121, 125
-131, 170, 172.
Laws of 1853, ch. 573.
An act for the more effectual prevention of wanton and mali-
cious mischief. Passed July 18, 1853.
APPENDIX C.
CXXV
The criminal remedy herein given is embraced in section 720 of
the Code. See also sections 696, 697. The civil remedy is pre-
served by section 783.
Laws of 1853, ch. 629.
An act for the protection of birds in public cemeteries. Passed
July 21, 1853.
Covered by section 702.
Laws of 1854, ch. 58.
An act to amend the Revised Statutes in relation to agents of
state prisons. Passed March 13, 1854.
This act is repealed by section 1070, subd. 10. The substance
of its provisions, as amended by Laws of 1860, ch. 48, is embodied
in section 863 of the Code.
Laws of 1854, ch. 74.
An act to provide for the punishment of assaults with dangerous
weapons. Passed March 23, 1854.
Covered by section 308.
Laws of 1854, ch. 109.
An act for the protection of gas-light companies. Passed April
1, 1854.
Covered by section 599.
Laws of 1854, ch. 130.
An act in relation to libel. Passed April 1, 1854.
Covered by sections 315, 316.
Laws of 1854, ch. 175.
An act to prevent the destruction of timber on the lands of the
Tuscarora Indians, and to regulate the highway labor among said
Indians. Passed April 7, 1854.
All existing laws relative to Indians are preserved by section
785.
Laws of 1854, ch. 223.
An act to appoint commissioners to investigate and examine
into the pecuniary affairs and condition of the several state prisons
of this state, and to report thereon, and also such laws as they
may deem proper for the better regulation and discipline of said
prisons, to the Legislature of this state. Passed April 14, 1854.
Unaffected by the Code.
cxxvi
THE PENAL CODE.
Laws of 1854, ch. 232.
An act for the incorporation of companies formed to navigate
the lakes and rivers. Passed April 15, 1854.
As to officer of corporation refusing to exhibit its books to
stockholders, provided for by section 23 of the act, see section
658 of the Code.
Laws of 1854, ch. 240.
An act to amend the several acts in relation to state prisons, and
making appropriations for the Clinton, Auburn and Sing Sing
prisons. Passed April 15, 1854.
This act is repealed by section 1070. So far as its provisions
are deemed important to be continued, they are embodied in title
XIX.
Laws of 1854, ch. 332.
An act prescribing regulations in regard to the management of
the canals, and for other purposes. Passed April 15, 1854.
Section 8 of the act, declaring certain false swearing perjury, is
covered by section 150 of the Code.
Laws of 1854, ch. 398.
An act to provide for the enrollment of the militia and the
organization of uniformed corps, and the discipline of the mili-
tary forces of the state. Passed April 17, 1854.
Cases of false swearing such as are embraced within section 6
of title III of the act, are covered by the general provision of
section 150 of the Code.
Neglects of duty by civil officers such as are made punishable
by the act, are covered by section 215.
All existing laws authorizing military penalties, are preserved
by section 785.
Laws of 1855, ch. 20.
An act to enable the common council of the city of New York
to take testimony, in matters referred for investigation or inquiry.
Passed February 8, 1855.
All existing laws authorizing punishment for contempts are pre-
served by section 785.
As to so much of the act as declares certain false swearing
perjury, see section 150 of the Code.
Laws of 1855, ch. 155.
An act to provide for the punishment of the fraudulent and
1
APPENDIX C.
cxxvii
unauthorized issue and transfer of the stock and bonds of corpora-
tions and joint stock companies. Passed April 5, 1855.
Covered by section 566.
Laws of 1855, ch. 199.
An act in relation to the property and money taken from per-
sons arrested and accused of crimes in the city of New York and
Brooklyn. Passed April 9, 1855.
Preserved by section 786, subd. 9.
Laws of 1855, ch. 214.
An act to amend an act entitled "An act for the more effectual
suppression of gambling," passed July 10, 1851. Passed April 9,
1855.
Covered by section 393.
Laws of 1855, ch. 231.
An act for the prevention of intemperance, pauperism and
crime. Passed April 9, 1855.
Omitted, because repealed by Laws of 1857, ch. 628, § 33; its
leading principle having been pronounced unconstitutional. See
People v. Toynbee, 20 Barb., 168; People v. Berberrich, Id., 168,
224; 2 Park. Cr., 329; 11 How. Pr., 289; People v. Quant, 2
Park. Cr., 410; 12 How. Pr., 83; Wynehammer v. People, 13
N. Y., 378.
Laws of 1855, ch. 334.
An act to authorize the agent and warden of Sing Sing prison
to let by contract the labor and services of convicts in that prison,
to the business of quarrying, splitting, sawing and removing stone,
for a term of years. Passed April 12, 1855.
Repealed by section 1070. Its provisions are embodied in
sections 1015–1017.
Laws of 1855, ch. 427.
An act in relation to the collection of taxes on lands of non-
residents, and to provide for the sale of such lands for unpaid
taxes. Passed April 13, 1855.
Neglects of duty by public officers, such as are designated by
section 88 of the act, are covered by section 215 of the Code.
Laws of 1855.
An act to provide for insane criminals. Passed April 13,
1855.
cxxviii
THE PENAL CODE.
Repealed by section 1070. Provisions in relation to insane
convicts are given in sections 1048–1058.
Laws of 1855, ch. 499..
An act in relation to stealing and forging of railroad tickets.
Passed April 14, 1855.
As to forging of railroad tickets, see section 571.
As to larceny, see sections 594, 595.
Laws of 1855, ch. 501.
An act to provide for the payment of the debts of the several
state prisons, and for other purposes. Passed April 14, 1855.
Unaffected by the Code.
Laws of 1855, ch. 531.
An act for the prevention of frauds upon the canal revenues.
Passed April 14, 1855.
Laws authorizing forfeitures are preserved by section 783.
Section 4 of the act relative to officers concealing frauds upon
the canal revenues, is covered by section 513 of the Code.
Laws of 1855, ch. 536.
An act in relation to the first division and fifth brigade, of the
New York State militia. Passed April 14, 1855.
This act was repealed by Laws of 1862, ch. 476, § 319.
Neglects of duty by civil officers, such as are designated by the
act, are covered by section 215.
As to injuries to state property, see sections 519 and 696.
All existing laws relative to military punishments are preserved
by section 785.
Laws of 1855, ch. 552.
An act to amend the several acts in relation to state prisons.
Passed April 19, 1855.
This act is repealed by section 1070. In provisions, so far as
they are deemed important to be continued, are embodied in title
XIX.
Laws of 1855, ch. 564
An act to amend an act entitled "An act for the protection of
birds in public cemeteries," passed July 21, 1853. Passed April
19, 1855.
The amendment here made, is deemed too stringent. The pro-
visions of the original act only are presented. See section 702 of
the Code.
1
APPENDIX C.
cxxix
Laws of 1856, ch. 34.
An act making appropriation for rebuilding the prison building
at Sing Sing. Passed March 11, 1856.
Unaffected by the Code.
Laws of 1856, ch. 147.
An act relative to public health and quarantine, and regulations
in the nature of quarantine at the port of New York, and to the
Marine Hospital. Passed April 9, 1856.
The commissioners have contemplated the revision of the Health
Laws as a separate body of laws. (See section 786, note.) Provi-
sions for their enforcement, embodying many of the sections of
the above act, are found in sections 435-441.
Laws of 1856, ch. 158.
An act in relation to the punishment of crimes in certain cases.
Passed April 11, 1856.
See section 755 of the Code.
Laws of 1857, ch. 43.
An act for the more effectual prevention and punishment of
vagrancy and crime in the county of Washington. Passed Feb
ruary 19, 1857.
Unaffected by the Code.
Laws of 1857, ch. 94.
An act to amend the several acts in relation to state prisons.
Passed March 10, 1857.
This act is repealed by section 1070, subd. 15. Its provisions,
so far as they are deemed important to be continued, are embodied
in title XIX.
Laws of 1857, ch. 144.
An act appropriating money for making provisions for insane
convicts. Passed March 20, 1857.
This act, except the provisions of sections 1 and 2, which are
temporary in their nature, is repealed by section 1070, subd. 16.
As to section 3 of the act, relative to insane convicts, see sec-
tions 1048-1058; and note to section 1048.
Laws of 1857, ch. 181.
An act to amend "An act regulating highways and bridges in
the counties of Suffolk, Queens and Kings," passed February 23,
1830. Passed March 26, 1857.
CXXX
THE PENAL CODE.
As to the offense of injuring trees, &c, on highways, mentioned
in section 22 of the act, see sections 696 and 720 of the Code.
Laws of 1857, ch. 193.
An act to regulate the business of purchasing rags, rope and
metals in the city of Albany. Passed March 28, 1857.
Preserved by section 786, subd. 10.
Laws of 1857, ch. 199.
An act to authorize the formation of a railroad corporation in
place of the Northern Railroad Company, dissolved, and to
empower said railroad company to execute a mortgage upon its
property. Passed March 31, 1857.
Cases of misapplication of corporate property by officers, such
as are specified in section 6 of the act, are deemed sufficiently
covered by the provisions on embezzlement, (sections 601–612), and
on frauds in management of corporations, (sections 645-668).
Laws of 1857, ch. 243.
An act to amend the Pilot Laws, passed June 28, 1853. Passed
April 3, 1857.
Unlicensed piloting is covered by section 442.
Laws of 1857, ch. 255.
An act to provide for straightening and working the highway
leading from Losee's Corner to the village of Sing Sing, in the
town of Ossining. Passed April 6, 1857.
Unaffected by the Code.
Laws of 1857, ch. 348.
An act to make the office of supervisor in Albany county a
salaried office, and to regulate the compensation of the clerk of
the board of supervisors in said county. Passed April 13, 1857.
A violation of the first clause of section 3 of the act will be
punishable as a misdemeanor under section 215 of the Code.
Laws of 1857, ch. 396.
An act to punish nuisances and malicious trespasses on lands.
Passed April 13, 1857.
Section 1 of the act is covered by section 494 of the Code.
Laws of 1857, ch. 437.
An act for the better regulation of the firemen of the city of
Buffalo. Passed April 14, 1857.
APPENDIX C.
cxxxi
The offense of personating a fireman, designated in section 16.
of the act, is covered by section 622 of the Code.
Laws of 1857, ch. 470.
An act to prevent frauds in the sale of tickets to passengers
upon railroads, steamboats and steamships. Passed April 15, 1857.
More stringent provisions upon this subject, founded upon the
more recent act, Laws of 1860, ch. 103, are presented in sections
669-682 of the Code.
Laws of 1857, ch. 569.
An act to establish a metropolitan police district and provide
for the government thereof. Passed April 15, 1857.
Preserved by section 786, subd. 11.
Laws of 1857, ch. 628.
An act to suppress intemperance and to regulate the sale of
intoxicating liquors. Passed April 16, 1857.
As to the various offenses declared by this act, see sections 728-
733.
Laws of 1857, ch. 659.
An act to provide for the preservation of timber and stone on
the lands of Onondaga Indian Reservation. Passed April 16, 1857.
Preserved by section 786, subd. 12.
Laws of 1857, ch. 671.
An act to establish regulations for the port of New York.
Passed April 16, 1857.
Preserved by section 786, subd. 13.
Laws of 1858, ch. 130.
An act to organize the State Lunatic Asylum for insane convicts.
Sections 10, 11 and 12 of the act, relating to the custody of
insane convicts, are repealed by section 1070, subd. 17.
The remaining provisions, which relate to the organization and
management of the asylum, are unaffected by the Code.
Laws of 1858, ch. 139.
An act authorizing the imprisonment of persons convicted of
certain crimes in the counties of Montgomery and Oneida, in the
Albany County Penitentiary. Passed April 12, 1858.
Unaffected by the Code.
68
cxxxii
THE PENAL CODE.
Laws of 1858, ch. 322.
An act in relation to jurors and to the appointment and the
duties of a commissioner of jurors in the county of Kings. Passed
April 17, 1858.
Preserved by section 786, subd. 14.
Laws of 1858, ch. 326.
An act to prevent the issue of false receipts and to punish
fraudulent transfers of property by warehousemen; wharfingers
and others. Passed April 17, 1858.
This act is the basis of sections 683-689.
Laws of 1858, ch. 330.
An act to amend "An act to extend the jurisdiction of the
courts of general and special sessions of the peace, in and for the
city and county of New York," passed April 12, 1855. Passed
April 17, 1858.
Omitted as relating to procedure.
Laws of 1858, ch. 359.
An act to amend an act entitled "An act for the prevention of
masquerades," passed April 25, 1829. Passed April 19, 1858.
Covered by section 480.
Laws of 1859, ch. 36.
An act to enable agricultural and horticultural societies to
extend a more perfect protection to their property, and the pro-
perty of exhibitors at fairs, and to allow the board of managers to
appoint a police for that purpose. Passed March 7, 1859.
Malicious injuries to property, such as are designated by the
act, are covered by sections 696 and 721 of the Code.
The gaining admission to the grounds improperly, is not deemed
to require criminal punishment except as it may fall within general
provisions relative to disturbance of the public peace. The provi-
sions of the act in this respect are anomalous.
Laws of 1859, ch. 37.
An act to prevent and punish prize fighting. Passed March 7,
1859.
See sections 485-491.
Laws of 1859, ch. 82.
An act to provide for the organization and government of the
police force of the city of Albany. Passed March 31, 1859.
Preserved by section 786, subd. 15,
APPENDIX C.
cxxxiii
Laws of 1859, ch. 137.
An act to incorporate the Kane Monument Association in the
city of New York. Passed April 5, 1859.
Misappropriation of corporate property, by officers of the cor-
poration, such as is designated by section 6 of the act, is deemed
sufficiently covered by the provisions of the Code on embezzle-
ment (see sections 601-612), and on frauds in management of
corporations. (See sections 645-658.)
Injuries to monuments are covered by sections 361 and 696 of
the Code.
Laws of 1859, ch. 249.
An act to authorize the agent and warden of the Auburn prison
to sell certain lands belonging to the state. Passed April 12,
1859.
Unaffected by the Code.
Laws of 1859, ch. 254.
An act empowering the boards of supervisors in the respective
counties of this state to fix and determine the compensation to be
allowed for the conveyance of juvenile delinquents to houses of
refuge, and insane criminals to insane asylums. Passed April 12,
1859.
Unaffected by the Code.
Laws of 1859, ch. 289.
*
An act to extend the provisions of "An act authorizing the
imprisonment of persons convicted of certain crimes in the
counties of Montgomery and Oneida, in the Albany County Peni-
tentiary," passed April 12, 1858, to all the counties in this state.
Passed April 13, 1859.
Unaffected by the Code.
Laws of 1859, ch. 311.
An act to provide for the inspection and sealing of gas meters,
and for the protection of consumers of illuminating gas. Passed
April 14, 1859.
The frauds upon gas companies designated by section 11 of the
act, are covered by section 599 of the Code.
Laws of 1859, ch. 346.
An act concerning the salt springs and the manufacture of salt.
Passed April 15, 1859.
cxxxiv
THE PENAL CODE.
Section 62 of the act, relating to injuries to salt works, is em-
bodied in section 518 of the Code.
Laws of 1859, ch. 349.
An act to amend an act entitled "An act for the regulation and
government of the Central Park in the city of New York," passed
April 17, 1857, and further to provide for the maintenance and
government of said park. Passed April 15, 1859.
Preserved by section 786, subd. 16.
Laws of 1859, ch. 350.
An act vesting the control of the piers, booms and dams, on
Salmon river, in the commissioners for improving said river.
Passed April 15, 1859.
Section 2, relative to interfering with piers, &c., on Salmon river,
is covered by the more general provision of section 710.
Laws of 1859, ch. 353.
An act to amend the act entitled "An act to prevent the issue
of false receipts, and to punish fraudulent transfers of property by
warehousemen, wharfingers and others," passed April 17, 1858.
Passed April 15, 1859.
See sections 683-689; and note to section 686.
Laws of 1859, ch. 380.
An act for ascertaining by proper proofs the citizens who shall
be entitled to the right of suffrage, and to prevent fraudulent
voting. Passed April 15, 1859.
The provision of section 5, relative to false statements on apply-
ing to be registered as an elector, is covered by the more general
provision of section 77 of the Code.
As to section 14 of the act, see sections 75, 76 and 150.
Laws of 1859, ch. 453.
An act for the enlargement of the
Sing prisons, and for other purposes.
Unaffected by the Code.
Laws of 1859, ch. 470.
Clinton, Auburn and Sing
Passed April 18, 1859.
An act providing for the sale of certain lands belonging to the
state, and appropriating the moneys arising therefrom. Passed
April 18, 1859.
Unaffected by the Code. Such cases of false swearing as are
provided for by section 7, are, however, covered by section 150 of
the Code.
APPENDIX C.
CXXXV
Laws of 1859, ch. 491.
An act in relation to the court of special sessions in the city and
county of New York, and the powers of police justices. Passed
April 19, 1859.
Preserved by section 786, subd. 17.
Laws of 1860, ch. 20.
An act in relation to the cutting of ice in the Hudson river.
Passed February 11, 1860.
More extended provisions are given in sections 464–466.
Laws of 1860, ch. 27.
An act to authorize the agent and warden of the state prison at
Sing Sing to purchase certain land. Passed February 11, 1860.
Unaffected by the Code.
Laws of 1860, ch. 39.
An act to compel the attendance of witnesses before committees
of common councils of cities, and to punish false swearing by
such witnesses. Passed February 18, 1860.
Section 1 of this act, declaring false swearing before committee
perjury, is covered by section 150 of the Code.
Section 3, allowing punishment for contempt, is preserved by
section 785.
Laws of 1860, ch. 103.
An act to prevent frauds in the sale of tickets upon steamboats,
steamships and other vessels. Passed March 23, 1860.
The provisions of this act are the basis of sections 669-682 of
the Code.
Laws of 1860, ch. 117.
An act to amend an act entitled "An act in relation to the sale
of bottles used by the manufacturers of mineral waters and
others," passed May 7, 1847. Passed March 24, 1860.
The provisions of this act are the basis of sections 417–419.
Laws of 1860, ch. 141.
An act to amend an act entitled "An act to prevent and punish
prize fighting," passed March 7, 1859. Passed March 31, 1860.
Covered by section 496.
Laws of 1860, ch. 155.
An act in relation to bale hay and hay scales. Passed April 3, 1860.
Covered by sections 449, 450.
cxxxvi
THE PENAL CODE.
Laws of 1860, ch. 172.
An act to incorporate the Westfield gas company. Passed
April 6, 1860.
Section 7, relative to injuring gas pipes of the company is
covered by section 722 of the Code.
Laws of 1860, ch. 213.
An act to provide the means for the completion of the canals
of this state, and fully supply them with water, and for other
purposes. Passed April 9, 1860.
Section 5, relative to certain offenses affecting the canals, is
covered by sections 516, 517 of the Code.
Laws of 1860, ch. 259.
An act to amend an act entitled "An act to establish a metro-
politan police district, and to provide for the government thereof;"
passed April 15, 1857.. Passed April 10, 1860.
Continued in force by section 786, subd. 18.
As to section 25 of the act, see note to section 150 of the
Code.
Laws of 1860, ch. 265.
An act to provide for the manner of holding elections on the
Cattaraugus and Allegany reservations in this state. Passed
April 11, 1860.
Section 7 of the act, relative to corrupt practices at Indian
elections is preserved by section 785 of the Code.
Laws of 1860, ch. 283.
An act authorizing the reports of the male and female depart-
ments of state prisons to be made separately. Passed April 12,
1860.
Covered by section 791
Laws of 1860, ch. 337.
An act requiring the justices of the peace in the several towns
of Monroe and Niagara counties, and the police justice of the
city of Rochester, to pay over to the county treasurer all fines
received by them, and to report annually to the board of super-
visors. Passed April 12, 1860.
Section 4 of the act, relative to omissions of duty by certain
officers, is covered by the more general provisions of section 215
of the Code.
APPENDIX C.
cxxxvi1
Laws of 1860, ch. 373.
An act to incorporate the Orange county milk association.
Passed April 14, 1860.
Section 11, relative to selling adulterated milk, is covered by
the more general provisions of section 451 of the Code.
Laws of 1860, ch. 399.
An act to amend the several acts in relation to state prisons.
Passed April 14, 1860.
The various provisions of this act are covered by sections 844,
849, 850, 864, 869, 874, 878, 997–1007.
Laws of 1860, ch. 410.
An act in relation to capital punishment, and to provide for the
more certain punishment of the crime of murder. Passed April
14, 1860.
See note to section 241, for reasons why this act is omitted.
Laws of 1860, ch. 442.
An act to regulate the sale of poisons. Passed April 16, 1860.
Covered by sections 446 and 448; except section 3 of the act,
which is omitted for reasons stated in note to section 448 of the Code.
Laws of 1860, ch. 458.
An act to increase the compensation of assistant matrons of the
Sing Sing female prison. Passed April 16, 1860.
Laws of 1860, ch. 465.
An act for ascertaining and collecting the damages caused by
the destruction of the marine hospitals and other buildings and
property at Quarantine. Passed April 16, 1860.
The provision of section 4, declaring false swearing perjury, is
covered by section 150.
Laws of 1860, ch. 488.
An act to lay out a public park and a parade ground for the
city of Brooklyn, and to alter the commissioner's map of said city
Passed April 17, 1860.
Continued in force, by section 786, subd. 19.
Laws of 1860, ch. 501.
An act to preserve the public peace and order on the first day
of the week, commonly called Sunday. Passed April 17, 1860.
Continued in force, by section 786, subd. 20.
cxxxviii
THE PENAL CODE.
Laws of 1860, ch. 508.
An act in relation to police and courts in the city of New Yor.
Passed April 17, 1860.
So much of this act as relates to disorderly persons is e.
pressly preserved by section 785. Other portions are not within
the scope of the Code, and are, of course, unaffected by it, except
sections 18, 33 and 34; as to which, see sections 550 and 587, and
note.
Laws of 1861, ch. 63.
An act for the removal of insane convicts from the state lunatic
asylum at Utica, to the state lunatic asylum for insane convicts at
Auburn. Passed March 21, 1861.
Unaffected by the Code.
Laws of 1861, ch. 124.
An act concerning the navigation of the canals and the collec-
tion of tolls. Passed April 3, 1861.
Section 4 is covered by section 512 of the Code, and section 5
by section 515.
Laws of 1861, ch. 282.
An act to supply Sing Sing prison with Croton water, and for
the sale of certain lands of the state. Passed April 17, 1861.
Unaffected by the Code.
Laws of 1861, ch. 283.
An act for the protection and improvement of the Tonawanda
band of Seneca Indians, residing on the Tonawanda reservation in
this state. Passed April 17, 1861.
Section 15, which declares false swearing in certain cases to be
perjury, is covered by section 150 of the Code.
Laws of 1861, ch. 303.
An act in relation to cases of murder, and of arson in the first
degree, occurring previously to the fourth day of May, in the year
one thousand eight hundred and sixty. Passed April 17, 1861.
For the punishment for arson and murder prescribed by the
Code, see sections 241, note, 247 and 539.
Laws of 1861, ch. 306.
An act to amend the act passed May eighth, eighteen hundred
and forty-six, entitled "An act to authorize the establishment of
1
APPENDIX C.
cxxxix
the House of Refuge for juvenile delinquents in western New
York." Passed April 17, 1861.
Unaffected by the Code.
Laws of 1861, ch. 340.
An act to amend an act entitled "An act to lay out a public
park and a parade ground in the city of Brooklyn, and to alter the
commissioner's map of said city;" passed April 17, 1860. Passed
May 2, 1861.
Continued in force by section 786, subd. 21.
Laws of 1862, ch. 197.
An act to repeal chapter four hundred and ten, passed April
14, 1860, and chapter three hundred and three, passed April 17,
1861, and to divide the crime of murder into two degrees, and to
prescribe the punishment of arson. Passed April 12, 1862.
As to so much of this act as relates to degrees in murder, see
note to section 241 of the Code. Sections 7 and 8, punishing
arson, are covered by section 539.
Laws of 1862, ch. 198.
An act to amend an act entitled "An act to supply Sing Sing
prison with Croton water, and for the sale of certain lands of the
state," passed April 17, 1861. Passed April 12, 1862.
Unaffected by the Code.
Laws of 1862, ch. 235.
An act to enable the people of this state to acquire certain lands
situated in the town of Ossining, in the county of Westchester,
for the use of the Sing Sing prison. Passed March 15, 1862.
Unaffected by the Code.
Laws of 1862, ch. 273.
An act to amend an act entitled "An act to regulate the sale of
poisons," passed April 16, 1860. Passed April 17, 1862.
Covered by sections 446-448.
Laws of 1862, ch. 281.
An act to regulate places of public amusement in the cities and
incorporated villages of this state. Passed April 17, 1862.
Continued in force by section 786, subd. 22.
Laws of 1862, ch. 285.
An act to amend chapter four hundred and twenty-seven of the
Laws of 1855. Passed April 17, 1862.
69
cxl
THE PENAL CODE.
Section 2, prohibiting the comptroller to be interested in, any
tax sales, is covered by section 499.
Laws of 1862, ch. 306.
An act to prevent and punish fraud in the use of false stamps,
brands, labels, or trade marks. Passed April 17, 1862.
See the provisions on this subject in sections 410-416 of the
Code.
Laws of 1862, ch. 356.
An act to provide for the regulation aud inspection of buildings,
the more effectual prevention of fires, and the better preservation of
life and property in the city of New York. Passed April 19, 1862.
Continued in force by section 786, subd. 1.
Laws of 1862, ch. 374.
An act to prevent attempts to commit burglaries and other
crimes. Passed April 19, 1862.
Section 1 of the act is covered so far as the commissioners
have thought advisable, by sections 549 and 550 of the Code;
section 2 by section 587, subd. 2; and section 3 is omitted for the
reason stated in the note to section 587 of the Code.
Laws of 1862, ch. 378.
An act to amend an act entitled, "An act in relation to jurors
and to the appointment and the duties of a commissioner of
jurors in the county of Kings," passed April 17, 1858. Passed
April 21, 1862.
The only penal provision is that of section 4, relative to mis-
conduct in drawing jurors in Kings county. The commissioners
perceive no reason why a special rule on this subject should be
prescribed for a particular county; and they have omitted this
statute, leaving the case contemplated to the operation of sections
103, 132 and 215 of the Code.
Laws of 1862, ch. 403.
An act to increase the duties and compensation of the physicians
respectively, at the Auburn, Sing Sing and Clinton Prisons. Passed
April 21, 1862.
This act is doubtless impliedly repealed by Laws of 1864, ch.
300; but as that act contains no repealing clause, the act of 1862
is enumerated among the acts repealed by section 1070 of the
Code. (See subd. 21.)
•
APPENDIX C.
cxli
Laws of 1862, ch. 417.
An act to alter the term for which criminals may be sentenced
to state prison, and to provide for their earning a commutation of
sentence, and an increase of the amount to be paid them on their
discharge. Passed April 22, 1862.
As to section 1 of the act, see section 753 of the Code. As to
sections 2-4, relative to commutation of sentences, see sections
1018-1023. As to section 5, permitting sums received from
visitors to be applied to the use of discharged convicts, see section
870, last clause.
Laws of 1862, ch. 467.
An act to prevent the adulteration of milk, and prevent the
traffic in impure and unwholesome milk. Passed April 23, 1862.
Sections 451 and 452 of the Code, are believed to be practically
adequate to accomplish the object of this act.
Laws of 1862, ch. 474.
An act for the preservation of moose, wild deer, birds and fresh
water fish. Passed April 23, 1862.
Preserved by section 786, subd. 23.
Laws of 1862, ch. 477.
An act to provide for the enrollment of the militia, the organi-
zation and discipline of the National Guard of the State of New
York, and for the public defense. Passed April 23, 1862.
Section 11 of the act, declaring certain false swearing perjury,
is covered by section 150 of the Code.
Sections 19, 294 and 296, relative to neglect of duty by certain
officers, by section 215.
Section 314, relative to the retaining of military property by a
person belonging to the military forces, contrary to orders, is
deemed anomalous in its present form. So far as public property
of a military character requires protection from the wrongdoers,
irrespective of their membership in the military force, the general
provisions relative to larceny, embezzlement, &c., and the provi-
sions of sections 517, 519, 696, &c., are deemed sufficient. In so
far as the offense consists in the disobedience to a military order,
a military punishment seems more appropriate.
The various military punishments authorized by the act, are pre-
served by section 785.
Laws of 1862, ch. 484.
An act in relation to the courts in the city and county of New
York. Passed April 24, 1862.
exlii
THE PENAL CODE.
Laws of 1863, ch. 15.
An act to authorize the levying of a tax upon the taxable pro-
perty of the different counties and towns in this state, to repay
moneys borrowed for, or expended in the payment of bounties to
volunteers, or for the expenses of their enlistment, or for aid
to their families, or to pay any liability incurred therefor. Passed
February 21, 1863.
So much of section 11 of the act as relates to omission of duty
by supervisors, is covered by section 215 of the Code.
Laws of 1863, ch. 51.
An act to amend the Revised Statutes in relation to misde-
meanors. Passed March 25, 1863.
Covered by sections 106-109.
Laws of 1863, ch. 139.
An act to amend the act to organize the State Lunatic Asylum
for insane convicts, passed April 8, 1858. Passed April 17, 1863.
See sections 1048-1053, and notes.
Laws of 1863, ch. 174.
An act in relation to the detention of prisoners in the county of
Kings. Passed April 17, 1863.
See sections 174 and 215.
Laws of 1863, ch. 192.
An act for the protection of the skating pond upon the Byram
river. Passed April 20, 1863.
Omitted, for the reason that a statute penalty recoverable by
civil action would be a more appropriate mode of protecting a
merely local interest, like that referred to, than to create a new
criminal offense.
Laws of 1863, ch. 209.
An act to amend the act entitled, "An act to prevent and pun-
ish fraud in the use of false stamps, brands, labels, or trade marks,"
passed April 17, 1862. Passed April 23, 1863.
See the provisions on this subject, in sections 410-416 of the
Code.
Laws of 1863, ch. 244.
An act to amend section seventeen of article two of title three
of chapter one of part four of the Revised Statutes, entitled “Of
Burglary." Passed April 29, 1863.
See section 545.
APPENDIX C.
cxliii
Laws of 1863, ch. 291.
An act appropriating certain waters to the use of the Clinton
state prison, and to make compensation therefor. Passed April
29, 1863.
Unaffected by the Code.
Laws of 1863, ch. 358.
An act establishing a Quarantine and defining the qualifications,
duties, and powers of the health officer for the harbor and port
of New York. Passed April 29, 1863.
The commissioners have contemplated the revision of the Health
Laws as a separate body of laws. (See section 786, note.) Pro-
visions for their enforcement, embodying many of the sections of
the above act, are found in sections 435-441.
Laws of 1863, ch. 415.
An act to amend section first of chapter four hundred and seven-
teen of the Laws of eighteen hundred and sixty-two. Passed May
4, 1863.
This act relates to the earning of commutations of sentence by
convicts in the state prisons. See provisions on that subject in
sections 1018-1023.
Laws of 1863, ch. 465.
An act in relation to contracts and labor at the state prisons of
the state. Passed May 5, 1863.
Sections 1-3 of the act are embodied in sections 1008-1110 of the
Code; section 4 in section 848; and section 5 in section 852,
subd. 3.
Laws of 1864, ch. 2.
An act to amend section three of chapter one hundred and
eighty-four of the Laws of 1863, entitled "An act to promote
the re-enlistment of volunteers now in the service of the United
States, and the enlistment of persons into regiments and corps now
in said service, and hereafter to be organized." Passed April 17,
1863. Passed January 29, 1864.
Continued in force by section 786, subd. 28.
Laws of 1864, ch. 142.
An act to revise and amend an act entitled "An act to author-
ize the formation of a railroad corporation in place of the Northern
railroad company, dissolved, and to empower said corporation to
cxliv
THE PENAL CODE.
execute a mortgage upon its property." Passed March 31, 1857.
Passed April 8, 1864.
The offense contemplated by section 4, amending section 6 of
the original act, is deemed sufficiently covered by the more general
provisions of sections 601-612.
Laws of 1864, ch. 196.
An act for the better regulation and discipline of the New York
State Inebriate Asylum. Passed April 15, 1864.
Preserved by section 786, subd. 24.
Laws of 1864, ch. 253.
An act to enable the qualified electors of this state, absent there-
from in the military service of the United States, in the army and
navy thereof, to vote. Passed April 21, 1864.
Preserved by section 786, subd. 28.
Laws of 1864, ch. 276.
An act in relation to the sale, use and disposition of butts, hogs-
heads, barrels, casks, or kegs used by the manufacturers of malt
liquors. Passed April 22, 1864.
Preserved by section 786, subd. 25.
Laws of 1864, ch. 300.
An act in relation to the compensation of the several officers of
state prisons. Passed April 23, 1864.
Is the basis of section 854.
Laws of 1864, ch. 321.
An act to amend section second of chapter four hundred and
fifteen of the Laws of 1863. Passed April 23, 1864.
Relates to earning commutations of sentence by convicts in state
prisons. See provisions on that subject in sections 1018–1023.
Laws of 1864, ch. 390.
An act to amend section seven of the act entitled "An act to
authorize the levying of a tax upon the taxable property of the
different counties and towns in the state, to repay moneys borrowed
for, or expended in the payment of bounties to volunteers, or for
the expenses of their enlistment, or for aid to their families, or to
pay any liability incurred therefor, or that may hereafter be incur
red, and to amend section one of chapter five hundred and fourteen
of the Laws of 1863." Passed February 9, 1864. Passed April
25, 1864.
APPENDIX C.
cxlv
This act was promulgated after the Code was so far completed,
that the act could not be made the basis of any distinct sections in
the body of the work; and in so far as it declares new misdemeanors
it is deemed too obscure and uncertain to be continued in force in
its present form, as authorizing criminal prosecutions. It is there-
fore disregarded. Violations of the act falling within sections 215
and 216 of the Code, will, however, be punishable under those
sections.
Laws of 1864, ch. 391.
An act to prevent the swindling of persons enlisting into the
military or naval service of the United States, and to make such
offenses felony, and to punish the use of certain means to procure
enlistments. Passed April 25, 1864.
Preserved by section 786, subd. 28.
Laws of 1864, ch. 403.
An act to amend an act entitled "An act to establish a Metro-
politan police district, and to provide for the government thereof,"
Passed April 15, 1857. Passed April 10, 1860. Passed April
25, 1864.
Preserved by section 786, subd. 26.
Laws of 1864, ch. 451.
An act to incorporate the Long Island City Water Company.
Passed April 30, 1864.
Section 17 of the act, making it a misdemeanor to injure the
works or property of the company, is deemed sufficiently covered
by sectious 696 and 722.
Laws of 1864, ch. 452.
An act to incorporate the Cambridge Valley Water Company.
Passed April 30, 1864.
Section 17 of the act making it a misdemeanor to injure the
works or property of the company, is deemed sufficiently covered
by sections 696 and 722.
Laws of 1864, ch. 544.
An act to amend chapter four hundred and sixty-seven of the
Laws of 1862, entitled "An act to prevent the adulteration of milk,
and to prevent the traffic in impure and unwholesome milk."
Passed May 2, 1864.
cxdvi
THE PENAL CODE.
See the act amended, in its place in this table. The amendatory
act was promulgated after the Code was too nearly completed
to admit of its being made the basis of provisions in the body
of the work.
Laws of 1864, ch. 555.
An act to revise and consolidate the general acts relating to
public instruction. Passed May 2, 1864.
Preserved by section 786, subd. 27.
INDEX
TO THE PENAL CODE,
INCLUDING THE NOTES.
[N. B. The figures refer to the page.]
ABDUCTION:
of persons out of the state, when
AIDING SUICIDE:
See SUICIDE:
punishable,.
punishment of,.
ABORTION:
7
118
procuring or attempting, where
death ensues,
85
ANIMALS:
other attempts to procure,
122
•
ACCESSORIES:
to felony defined,.
13
punishment of,
•
to misdemeanors,
•
considered as principals,.
ACCOUNT:
13
AMBASSADORS:
and their attendants exempt from
trial here,
12
liability of owner for injuries by,. 86
poisoning them,.
killing or cruelly treating them,..
causing them to fight,.
•
259
259
259
13, 273 APOTHECARY, &c.:
13
labeling drugs wrongly or omit-
ting label,..
166
public officer rendering, falsely, . 181
ACTION:
bringing, in false name,
74
defending, in certain cases,
268
•
ACTS:
not expressly forbidden,.
271
ADMINISTRATIVE OFFICERS:
same provisions apply as to ex-
ecutive,
35
ADULTERATION:
of food, drugs, &c.,
making up prescriptions wrongly, 166
APPOINTMENT:
buying or selling appointment to
office,
appointment made for reward is
void,
ARREST, &c.:
making, without lawful authority, 59
delaying to take arrested person
before magistrate,.
refusing to make or aid in,.
169 ARSON:
33, 34
34
888
59
60
189 191
190
190
191
192
•
ownership of the building,.
what constitutes malice,.
contiguous buildings,
ADVERTISEMENT:
definition,
of lottery,
•
139, 140
obscene,
135
of auctions,
183
how punishable,
AFFIDAVITS:
ASSAULT:
voluntary, when allowed,...
61
AFFIRMATION:
included in the term "Oath,".... 49
with deadly weapons,.
other assaults how punishable,
definition of,.
101
101
•
105
cxlviii
INDEX.
ASSAULT:
and battery, punishment of,..... 108
And see ATTEMPT TO KILL.
ASSEMBLY:
remaining at one after it has be-
BAWDY HOUSE:
keeping or letting, .
163
BEACON:
in N. Y. harbor, removing,....
264
BIGAMY:
come an unlawful one,
•
177
definition of,...
And see UNLAWFUL ASSEMBLY.
punishment of,..
124-126
127
ASSESSMENT:
BILL OF LADING:
false statement as to,
187
fictitious,..
..254, 255
ASSIGNMENTS:
BIRDS:
with preferences, when allowed, . 231
wounding, &c., in cemetery,. . . .
260
BIRTH OF CHILD:
ATTEMPT:
to commit crime, when punishable, 274
punishment of,..
•
ATTEMPT TO KILL:
by poison,.
•
by assault with deadly weapon,
by other assault,
ATTEMPTING SUICIDE:
96
is a misdemeanor,.
fraudulent pretense as to,....... 71
274
BLASPHEMY:
definition of,...
14
15
97
•
BOTTLES:
98
See TRADE-MARKS.
BRIBE:
See SUICIDE.
defined,.
281
•
ATTORNEY.
BRIBERY:
the word includes counselors, 65, 70
at elections,..
collusion or fraud by,
70
•
of executive officer,..
use of his name by any other
person,
71
defending certain prosecutions,.. 268
of witnesses,
AUBURN PRISON:
of members of legislature,.
of judicial officers, &c.,.
•
of canal officer,
22
31
37
39
•
•
57
186
Auburn guards,..
•
.349, 352
BRIDGES:
Fire company at,.
353
disposal of bodies of convicts dy-
malicious injury to,.
257
ing at,
359
BUGGERY:
See CRIME AGAINST NATURE.
AUCTIONEER:
other state,.
acting without filing bond,.
accepting appointment from an-
selling goods in another state,... 183
selling without advertising,.
having two places of business,.. 183
selling at other than his place of
business,.
fraud or evasion of law by,.
omitting to render account,.
what sales must be by day,.
182
BUILDINGS:
unlawfully entering,.
197
183
blowing up,..
260
attempting to blow up,
261
•
183
See, also, ARSON, BURGLARY.
BUOY:
183
•
in N. Y. harbor, removing,....
264
184
•
•
•
• •
184 BURGLAR'S TOOLS,....
197
184
•
BURGLARY:
B
degrees of, defined,.
punishment of,.
194-196
196
BALLOT-BOXES:
BURIAL:
destroying,.
28
See DEAD BODY.
BALLOTS:
altering, &c.,.. •
24
BURNINGS:
destroying,
28
other than arson,.
268
BARRATRY:
is a misdemeanor,..
BATTERY:
defined,.
BUYING:
definition of,..
64
64
106
lands in suit, . . .
demands, &c., by attorney,.
by justice or constable,..
•
by one prosecuting suit in person, 65
when allowable,.
65
Rappa
63
64
64
INDEX.
cxlix
CANAL:
injuries to,
•
C
officer concealing frauds upon
revenue,
185
•
185
weighmaster making false entry, 185
delivering false bill of lading,... 185
drawing water from,...
bribing officer to allow water to
be drawn,.
CLINTON PRISON:
may appropriate waters upon the
•
•
prison lauds,.
sale of liquor within three miles
of, prohibited,.
clothing for convicts in, may be
manufactured at Auburn and
Sing Sing prisons,
334
360
368
186
•
credit to be given therefor by
186
comptroller,
369
•
duties of warden relative to pur-
chases for the prison,
369
157
CARRIER:
refusing passenger,.
CEMETERY, &c.:
defacing tombs, &c.,
260
See BARRATRY.
wounding, &c., birds in,
134
•
and relative to receipts for sales, 369
COMMON BARRATRY:
COMMUTATION OF SENTENCES:
CERTIFICATE:
given falsely by public officer,... 75
CHALLENGE:
See DUEL.
PRIZE FIGHT.
CHAMPERTY :
See BUYING LANDS IN SUIT.
BUYING DEMANDS.
CHAPLAINS:
of state prisons, their duties pre-
how may be earned,..
convicts in the hospitals,
371
372
•
to whom the provisions apply,
warden must notify convicts,.
373
373
keepers and matrons must keep
record of work done,
373
governor may direct abatement
of sentence,
374
views'of the Prison Association
upon the commutation system,
scribed,
official reports of, . . .
COMPANY:
346
definition of,.
374-381
253
346, 347
COMPOUNDING:
crimes, prosecutions,
62
COMPULSION:
8
See DURESS.
71
72
CONFIDENTIAL RELATION:
• ·
•
121
82
123
CHILD:
when capable of committing
crime,
fraudulent pretense as to birth of,
substituting one for another,
neglect or desertion of,..
stealing of, .
concealing still birth of,
CHURCH:
See HOUSE OF WORSHIP.
CIVIL DEATH:
tickets.
by imprisonment for life,
.... 279
CONSTABLES:
CIVIL REMEDIES:
preserved,.
283
CLAIMS:
its effect, in homicide,.....
123 CONSPIRACY:
definition of,
•
when overt act is necessary,
75-77
78
•
78
251
against the peace of the state,
for unlawful sale of passage
neglect of town clerk to return
their names,.
CONSTRUCTION:
•
74
purchase of, by attorney, justice
of the Penal Code,.
5
or constable...
64
CONTEMPTS:
lending money upon them,
64
presenting false claim to public
when criminal,
•
officer,.
268
how punishable, .
CLERKS OF STATE PRISONS:
CONVEYANCES:
their duties in the business of the
punishments for, preserved,.
66
273
283
with intent to defraud, punishable, 230
prisons,.
337-340
•
.
must make annual reports,
may take affidavits,.
CLINTON PRISON:
certain lands to be reserved,
warden of, may draw arms,
may sell ores,
...
when it works forfeiture,
296 CONVICTS:
334
334
illegal voting by,..
importing foreign,.
339
CONVICTION:
340
•
must precede punishment,.
5
279
25
72
cl
INDEX.
i
CONVICTS:
unauthorized communication with, 74
protected by law,.
males, where to be sent,
females, where,
•
what compensation for transport-
CORPORATION:
279
moneyed, fraudulent insolvency of 246
directors of, punishable,.
247
290
violation of duty by director,.
247
• •
290
railroad, contracting
excessive
debt,
247
ing them,.
•
290, 291
such debt valid,.
247
account thereof,
• •
291, 292
Stock companies.
how paid,..
292
how many must be transported
misconduct by directors of,
242
unlawful dividends,..
242
together,..
292
removal of from one prison to
reducing or withdrawing capital, 243
another, ..
292-295
buying its own stock,...
243
convicts under sentence by courts
of the United States, how to be
CORPSE:
See DEAD BODY.
confined,.
299, 300
certificate of conviction to be de-
livered with convicts,.
CORRUPTLY :
354
defined,.
280
when to be kept single in their
cells,
COUNSELOR:
355
ance,
entitled to food and clothing,.
punishment for violence, commit
ted by,...
may be confined on short allow-
or in a solitary cell,.
355
included in the term "attor-
•
ney,".
65, 70
356
COUNTERFEITING:
356
See FORGERY.
•
357
•
COUNTY CLERK:
•
how to be apprehended in case of
escape,
358
•
omitting to publish annual state-
meut,.
182
ence,
358
COUNTY JAILS:
their use,.
restrictions upon their correspond-
inquiry into cause of death of,... 358
must be kept employed,.
at what trade,.
361
•
361, 362
363-368
contracts for their labor, how
given out,.
what contract must contain, 367, 368
how convicts may earn commuta-
..... 371-381
tion of sentence,..
custody of insane convicts in state
prisons,..
•
393-397
397
of insane prisoners in county
what rooms required in,.
term "jail" used instead of “pri-
son,
;)
289, 290
297
297 nole
299
382
•
383
temporary place of confinement
deemed county jail,..
keepers of, must receive all per-
sons duly committed,.
what prisouers must be kept sep-
arate,.
restrictions upon conversation,.. 383
prisouers to be provided with food,
•
clothing, &c.,
383
employment of the prisoners, 384, 385
bibles and religious services to be
jails,
COPARTNERSHIP:
using fictitious names,.
150
CORPORATION:
provided,..
385
fictitious subscription for stock,.. 241
fraud in organizing,..
jail record prescribed,.
•
385, 386
242
discharge of prisoners, .
387, 388
use of names in prospectus,
242
• •
how to be inspected,.
389-392
fraud in accounts,.
245
false reports, &c.,.
246
399
officer refusing inspection of books 246
director's knowledge presumed,.. 247
director's assent presumed,
foreign,
• •
"director" defined,
· •
248
•
248
248
included in the term "person, 282
•
banking, misconduct of directors, 243
excessive loan,
such loan valid,
sale, &c., of notes by officer,.
excessive circulation,..
officers of, exempt from jury and
militia duty,..
what punishments are allowed in, 399
restrictions upon use of liquor in, 399
who may visit them,
convicts in, how brought up to
testify,
•
in what cases competent,
how brought up for trial,
400
400, 401
401
•
402
to determine and impose punish-
243
244
COURT:
244
··
244
..245
or banker, receiving deposit when
insolvent,
making certain indorsements, &c., 245
officer overdrawing account,. 245
ments,
contempt of,.
6
66
COURT HOUSE:
selling liquor in,.
70
INDEX.
cli
COVERTURE:
when it affects responsibility for
crime,
10
CRIME AGAINST NATURE:
punishment of,...
CRIMES:
committed before this Code, how
punishable,..
abolition of common law offenses,
definition of the word,
•
degree must be found by jury,
*
DEPOSITION, &o.:
disclosure of, in certain cases pun-
ishable,
DETAINER,
•
68, 69
179
128 DISCHARGE:
fraud in applying for, in insol-
vency,
69
•
2
DISEASE:
2
3, 4
fected with contagious,
•
5
exposing in public persons af-
8 DISORDERLY HOUSE,
173
136, 251
who are capable of committing,
committed under subjection,
classification of parties to,.
9 DISSECTION:
12
See DEAD BODY.
compounding,...
61
when coming under different pro-
DISTURBANCE:
visions,
272
•
of religious meetings,.
mitigation of punishment,
273
•
of meetings of electors,
punishable under foreign laws,
273
•
•
of legislature,
•
273
•
•
275, 277
277
279
foreign conviction or acquittal,
attempts, when punishable,.. 274
second offenses,
•
foreign conviction for former of-
fense,
•
forfeiture of property,
CRIMINAL PROPENSITY:
not a defense,.
of proceedings of court or referee,
of funerals,
of other lawful meetings,.
19
27
35
66, 67
134
175
DOCUMENTS, PUBLIC:
stealing or destroying,
45
10
DOMESTIC RELATION, &c.:
its effect, in homicide,..
82
D
DRUGGIST:
DAMS:
See APOTHECARY.
interfering with or injuring,
263 DRUNKARDS, HABITUAL:
DANGEROUS ACT:
resulting in death of any one,. 82, 84 DRUNKENNESS:
selling liquor to,
267
DANGEROUS ANIMAL:
See INTOXICATION.
liability of owner, .
86 DUEL:
DEAD BODY:
definition of,.
must be buried,.
129, 130
punishment for fighting,
disposal of one's own,
129
•
punishment of seconds, &c.,
•
unlawful dissection of,.
custody of,...
who are charged with burial, .
punishment for not burying,
unlawful removal of,..
unlawful purchase of,.
violating place of burial,
attaching, for debt,
removal of cemetery,.
interference with burial of,.
DEADLY WEAPONS:
See ASSAULT.
DECEIVING A WITNESS:
a misdemeanor,
DEFINITIONS,
• • • •
•
•
130, 134
punishment for challenging or ac-
131
•
131
cepting,
challenge defined,
•
• • •
131
132
out of the state,
•
132
posting for not fighting,.
limitation of witness' privilege,.. 104
102
102
103
103
•
103
103
84
·
133
DURESS:
133
when a defense,.
10
133
134 DWELLING HOUSE:
•
definition of,.
197
E
EAVESDROPPING,
173
56
280-282
EDITORS, &c.:
liability for libel,
DEGREE OF CRIME:
ELECTION:
must be found by jury,
DEPOSITION, &c.:
5
definition of,
betting upon,
•
when the making of it is deemed
complete,
bribery, menace, &c.,..
51
furnishing money, &c., for,...
110
29, 30
22
22,
23
23
clii
INDEX.
ELECTION:
obstructing electors attending,
defrauding elector in his vote,.
EXTORTION:
24
•
•
under color of official right,
221
24
•
sending threatening letters,
221
• •
voting illegally, . .
24,
25
obtaining signature by threat, &c., 221
procuring illegal votes,
25
attempted,
222
procuring illegal registry,
26
EXTRADITION OF FUGITIVES:
personating qualified voter,
26
registering or voting under false
pretenses,
26
penalty for taking unlawful re-
ward for services,
33
preventing electors from voting,. 27
riotous conduct at,
27
F
disobeying inspectors, .
27
FALSE CERTIFICATE:
destroying ballots or boxes,..
28
•
summary arrest for disturbance,.
keeping false poll list,.
falsely canvassing or returning
votes,
misconduct by inspectors,
irregularities in, are no defense, .
rights of persons lawfully inter-
fering,
good faith in offering to vote may
be a defense,.
selling liquor near the polls,
destroying or delaying returns,..
ELECTION DAY:
selling liquor on,
28
by public officer,
75
28
FALSE CLAIM:
presenting to public officer,..
268
29
29
FALSE NAME:
·
29
bringing action in,
74
•
30
FALSE PRETENSES:
obtaining property by,
223-226
30
false manifest, invoice, &c.,
227
70
FALSE PROCLAMATION, &c.
264
of United States or state execu-
tive,...
270
267 FALSE REPORT:
EMBANKMENTS:
sea or river, injury to,..
... 263
of proceedings of a court, is con-
tempt,
67
EMBEZZLEMENT:
FALSE STATEMENT:
definition of..
218
to affect market price,
... 173
by ministerial officer,
58 FALSE WEIGHTS, &c.:
by public officer,
claim of title, a defense,.
181
•
219
using them,
229
intent to restore, is no defense,.. 219
restoration may mitigate punish-
using in selling provisions,
keeping them,
229
• •
229
seizure of,
229
ment,.
punishment for,.
ESCAPE:
how punishable,
permitting,
EVIDENCE:
220
and destruction, .
230
•
220
marking false weight on package,
&C.,
43
FEES:
58
230
taking excessive fees by officers,. 32
taking fees for official services not
of convict of perjury, when ex-
rendered,
33
cluded,
53
FELONY:
destroying,
56
definition,.
4, 5
offering false evidence,
55
•
punishment of,
6
preparing it,.
56
deceiving witness,
56
What are felonies.
• •
withholding evidence for reward,
62
treason,.
20
suppression of,.
63
illegal voting by one not a citizen
certain testimony not receivable
against the witness,
of the state,
25
66
procuring name to be registered
improperly,
26
EXCUSABLE HOMICIDE:
See HOMICIDE.
EX POST FACTO LAWS,
EXPOSURE OF PERSON:
See INDECENT EXPOSURE.
personating qualified voter at elec-
tion,
26
destroying ballots or boxes, .
28
•
2
•
bribery of executive officer,.
31
accepting bribe by executive offi-
cer,
32
preventing legislature from meet-
EXTORTION:
defined,
ing,
35
220
•
compelling adjournment of legis-
by force or fear, how punished,.. 221
lature,
36
!
INDEX.
cliii
FELONY:
compelling or preventing any offi-
cial act of legislature, .
36
altering draft of bill,
36
altering engrossed copy of bill,..
37
bribery of member of legislature,
member receiving bribe or "log-
37
rolling,"
37
offering bribe to judicial officer,
39
·
FELONY:
arson, 4 degrees, .
burglary, 4 degrees,
forgery, 4 degrees,
grand larceny,
•
buying stolen goods,
embezzlement,.
• •
extortion by force or threat,
sending threatening letters,
192
196
207
•
213
216
220
221
•
221
· •
escaping from prison,
judicial officer accepting hribe,
rescuing prisoners,
aiding felon to escape from prison,
destroying or stealing public rec-
39
falsely personating another and
42
cheating thereby,
222
43
obtaining property by false pre-
44
tenses,.
223
mock auctions, .
226
ords, &c.,.
45
filing, recording, &c., false or
surer,
forged instrument,
45
• • •
perjury,
51
offering false evidence..
55
·
preparing false evidence,.
56
•
embezzlement or injury to records
by ministerial officer,
58
resisting process, &c., in county
in insurrection,
60
compounding felony,
61, 62
maiming.
•
fraud as to birth of child,
substituting one child for another.
conspiracy against public peace,
attempting suicide,
aiding suicide or an attempt,.
murder,
manslaughter (2 degrees),
•
kidnapping,
attempts to kill,
robbery (2 degrees),
· • •
71
72
78
ticket.
•
80
80
ticket, ship,
82. 84
destroying vessels to defraud in-
fitting out, &c., for such purposes, 227
making false manifest, invoice,&c., 227
destroying insured property, 228
presenting false claim of loss,... 228
selling provisions by false weight,
&c.,
corporation, fraud in organizing,. 242
fraud in accounts,
selling passage ticket by unauthor-
ized person,
conspiracy to sell passage
• •
selling incomplete passage
229
issuing fictitious bill of lading, &c., 254
227
245
251
251
252
84-87
•
issuing fictitious warehouse re-
92
ceipt,...
254
93
96-98
issuing duplicate receipt, &c., not
so marked,
255
100
assault with deadly weapon,
101
·
•
selling, &c., property delivered for
transportation or storage,.
255
•
assault with intent to commit fel-
ony,.
101
redelivering property without can-
celing receipt, .
256
dueling,
102
malicious injury to railroad, or
sending, bearing or accepting
challenge,.
obstruction,
257
103
injury of highway, private way
assault with intent to injure,
108
• •
•
or bridge,
257
• •
rape,
117
• • •
abduction,
257
•
seduction,
•
desertion of child,.
121
•
attempt to procure abortion,
•
child stealing.
•
bigamy,
122
123
127
ried,
incest,
marriage with one already mar-
crime against nature,
128
•
128
128
unlawful removal of corpse,
132
117, 118
118-120
•
injury of toll house or turnpike
gate,
•
malicious mischief, in burning pro-
perty not subject of arson,.... 260
defacing house of worship,
&c..
blowing up buildings,
260
260
•
attempt to blow up buildings, 261
removing piles in sea or river
embankments,
•
masking or removing signal
lights, or showing false
263
•
unlawful purchase of corpse,
violating burial place,
·
poisoning food, wells, &c.,
aiding in a riot, in some cases,
embezzlement or false account by
public officer,..
132
•
light,
264
133
•
mutilating written instru-
149
•
ment,.
264
175
• •
destroying or delaying elec-
tion returns,.
264
181
•
destroying books, &c., in pub-
canal, giving false bill of lading
to collector,
185
willfully injuring canals,
185
•
injuring the salt works,
187
•
....
lic library or museum,. 265
injuring gas or water pipes,
&c.,
publishing false message, &c., of
265
taking military stores belonging
United States or state execu-
to the state,..
187
tive, ...
270
èliv
INDEX.
FORGERY:
FERRY:
keeping without authority, .………. 171
violating condition of recognizance
to keep,.
FILING, &c.:
false instruments,
FINE:
171
may be added to imprisonment, . 279
See PUNISHMENTS.
FIRE:
negligence as to,
neglect to aid in extinguishing,.. 171
obstructing attempts to extin-
guish,
FIRE ARMS:
... 45
tion debt,
having forged instruments with
intent to utter,
spurious or canceled certificates
of stock,..
issuing false evidences of corpora-
•
counterfeiting coin,
202, 203
203
204
204, 205
of process and other instruments, 205
in public accounts,
205
of passage ticket,
206
of United States stamps,
206
171
of corporation accounts,.
206
having counterfeit coin with in-
tent to utter,.
207
171
in accounts of employer,
207
uttering forged instrument, &c..
same as making,
208
discharging in public places, ... 180
using one's own name,
208
•
FOOD, &c.:
erasures, &c.,
209
adulterating,..
169
fictitious names, &c.,.
209
selling, &c., when spoiled,
170
FRAUD:
FORCE:
as to birth of child,
... 71
when lawfully used,
106
in putting up goods sold by weight, 169
•
to affect market price,.
• ..
FORCIBLE ENTRY AND DETAIN-
in removing property,
173
231
ER,
179
FRAUDULENT CONVEYANCES, . 230
FOREIGN CONVICTS:
importing,.
72 FUNERAL:
FORFEITURE:
279
disturbance of,..
134
not imposed for suicide,
79
•
of office by officer, acting without
G
qualifying,
31
by executive officer,
GAMBLING:
32
for appointing any one to a pub-
lic office for reward,
34
•
or for deputation,.
34
by member of legislature,
38
ing,
•
·
by judicial officer,.
39
by clerk or register,
45
•
on Sunday,
near religious meetings,
apparatus, punishment for keep-
such apparatus a public nuisance, 143
exacting payment of winnings,.. 143
17
20
142, 143
220
for buying claims, or lending mo-
winning by fraud,
143
ney upon them,
65
•
FORGERY:
by peace officers for not reporting
suspicions of prize fight,
in the 1st degree, definitions of, .
punishment of,..
in the 2d degree, definitions of, . .
punishment of,.
in the 3d degree, definitions of, 205-209
punishment of,.
in the 4th degree, definitions of,
winning or losing $25 or more,.. 144
witness' privilege abolished,
144
179
houses, tables, &c.,
145
apparatus to be seized and de-
stroyed,..
146
punishment of,.
of wills, deeds, &c.,.
• •
of public securities,
•
of public and corporate seals. 200
or destruction of records, &c., 209, 201
false certificate of acknowledg-
ment,.
acting after challenge has been
allowed,...
68
201
of bank notes, &c.,
201
uttering forged evidence of debt, 202
disclosure of evidence, &c., by,.. 74
disclosing indictment having been
found,
74
199, 208, 209
208
certain officers must prosecute,.. 147
•
enticing into houses for,.
147
on vessels, masters must prevent, 147
GAS:
200-204, 208, 209
208
fraudulent consumption of,
injuring pipes for,
216
265
208
GAS TAR:
203, 207-209
208
199
throwing it into streams, &c., ... 162
GIFT ENTERPRISE:
See LOTTERY.
199
•
GRAND JUROR:
INDEX.
cly
GUIDE POST:
malicious injury to, ....
257
GUNPOWDER, &c.:
making or keeping unlawfully,
keeping or carrying,
87
GUARDS:
at the state prisons, how organ-
ized,
348
how supplied with arms, &c.,.... 348
IDIOTS:
incapable of committing crimes,.. 8
See, also, INSANE PERSON.
IGNORANCE OF FACT:
See MISTAKE.
IGNORANCE OF LAW:
does not excuse,.
9
162
IMPRISONMENT:
H.
illegal,.
93
second term,
277
•
HAY:
for life,
278
putting up without marking,.... 169
of juvenile offenders in peniten-
HIGHWAYS, &c.:
tiary,.
278
malicious injury to,......
257
fine may be added,.
279
in state prison suspends civil
HOMICIDE:
rights,.
279
definition of,.
81
for life, is civil death,.
279
different kinds of,
81
what proof required,.
82
domestic or confidential relation,.
82
murder defined,..
82,
84
design, when inferred,
83
And see PUNISHMENTS.
INCAPACITY:
of one committing suicide, no de-
fense to one aiding him,...... 80
premeditation,
83
INCEST:
anger or intoxication no defense,. 83
punishment of,..
84
punishment of,.....
128
definition of,
•
punishment of,
• •
•
manslaughter in the 1st degree,
manslaughter, in the 2d degree,
INDECENT:
84, 85
86
exposure of person,
134
exhibitions, &c.,.
135
defined,
86,
87
killing by a mischievous animal,.
86
pictures, books, &c.,.
advertisements,
135
•
135
overloading vessel,
articles to be seized,
135
86
steam engine explosion,
86,
87
and destroyed,..
136
...
making or keeping gunpowder,
INDIANS:
&c., unlawfully,
87
selling liquor to,.
266
malpractice by intoxicated physi-
cian,
87 INDICTMENT:
punishment of,.
87
excusable homicide defined,
88
renewing application to stay trial,
without leave,.
68
justifiable homicide defined,
88
having been found, disclosure of,
74
HORSE RACING:
conspiracy to procure,.
75
See RACING.
HOUSEBREAKING:
See BURGLARY.
HOUSE OF ILL FAME:
See BAWDY HOUSE.
HOUSE OF WORSHIP:
defacing,.
HUDSON RIVER:
use of net, weir, &c., in,........ 173
HUNTING, &c.:
INJURIOUS ACTS:
not expressly forbidden,
271
INNKEEPER:
refusing guest,.
157
INSANE CONVICTS:
provisions for their custody, 393-398
260 INSANE PERSONS:
when incapable of committing
crimes,
8
how disposed of,.
10
unlawful confinement, &c.,.
156
on Sunday,...
17 INSOLVENCY:
HUSBAND:
killing of, by wife, . . . . . .
82
fraudulent, of moneyed corpora-
tion,.
INSOLVENT:
246
I.
ICE:
cuttings must be guarded,...... 172
fraud in applying for discharge of, 69
frauds by,..
230-240
preferential assignments by,..... 231
71
elvi
INDEX.
INSPECTORS OF ELECTIONS:
See ELECTIONS.
INSPECTORS OF PRISONS:
powers and duties of, in removal
of convicts,..
JAIL:
See PRISON.
JUDGES, &c. :
J
292-295
See OFFICERS, JUDICIAL.
must erect solitary cells,
295
•
how chosen,.
302 JURISDICTION:
how removed,
302
of the state over crimes,
to enter upon office January 1,.. 302
to take oath of office,.
302
JURORS:
meetings of,..
303
each inspector to take charge of
misconduct by officer having
charge of,..
41
one prison,..
303
41
to visit the state prisons,.
304
their powers and duties in man-
agement of the prisons,.. 304-310
must keep minutes of their pro-
ceedings,.
305
must make annual report,...305, 306
must transmit accounts and esti-
310
mates to comptroller,.... 306, 307
powers of, over witnesses,. 307, 308
to appoint the officers of the state
prisons,.
to examine into and regulate soli-
tary confinement of convicts,.. 357
must not employ convict labor on
• •
fraudulently drawing,.
JURORS, REFEREES, &c.:
improper attempts to influence,..
misconduct by,.
40
40
63
intimidation of,
jurors, &c., bribery of,...... 39, 40
JURY:
disturbance before, is contempt of
court,.
•
JUSTIFIABLE HOMICIDE:
See HOMICIDE.
K
67
work in which they are inte-
rested,..
362
KEEPERS:
penalty for illegally employing
convict labor,..
362
prosecution therefor,.
363
their powers in respect to con-
tracts for convict labor,.. 363-368
to inspect county jails,.
389
mode of inspection prescribed, 390–392
reports to be made,. .
391, 392
INSTRUCTORS:
duties,
at the state prisons, their du-
Of county jails. Must receive
United States prisoners,.. 299-301
of state prisons. Duties of, in
management of the prison, 340-343
Storekeeper at Sing Sing. His
duties,
341, 342
Kitchen keepers. Their duties, 342, 343
Hospital and hall keepers. Their
•
must keep record of work of con-
victs entitled to earn commuta-
343
ties,..
347, 348
INSURANCE:
false claims,
228
tion of sentence,
Must receive and keep persons
duly committed,..
373
•
382
duty of, as to manner of keeping
INSURED PROPERTY:
them,..
383
fraudulent destruction of,.. 227, 228
INTENT TO DEFRAUD:
what is necessary,
INTERPRETATION:
rules of,..
INTIMIDATION :
of member of legislature,
•
of officer, juror, &c.,.
of employees or laborers,.
INTOXICATING LIQUOR:
See LIQUOR.
INTOXICATION:
crime committed during,
no defense in case of murder,.
of physician,.
of railroad engineer, conductor, or
282
282
and as to employing them, . 384, 385
to provide bibles, and cause divine
service to be performed,...... 385
to keep jail record,.
385, 386
to present calendar of prisoners
to court of Oyer and Terminer
and court of Sessions,
387
must admit inspectors to the jails, 390
36
62 KIDNAPPING:
269
of person out of the state, when
punishable,
definition of,.
•
punishment of,
•
driver,.
in public,
9
83
87, 149
172
in,
effect of injured party's consent,.
selling services of person of color, 95
removing from the state persons
•
held to service elsewhere,
penalty for judicial officers aiding
95
95
266
See CHILD STEALING.
7
93
93-95
94
1
INDEX.
elvii
KNOWINGLY:
defined,..
LANDMARKS:
L
removing or defacing, .
LANDS:
buying or selling pretended titles
to,
buying, under suit,
under adverse possession, may be
mortgaged,
forcible entry and detainer,
unlawful re-entry upon,
•
LIBEL:
280
262
report of official proceedings priv-
ileged,
•
threatening to publish,
privileged communications,..
LIBERTY OF CONSCIENCE:
See RELIGIOUS BELIEF.
LICENSES TO SELL LIQUOR:
granting them wrongfully,.
110, 111
111
111
63
266
63
LIGHTS, SIGNAL:
64
removing or masking,.....
.. 264
179
LIQUOR:
179
•
unlawful intrusion or squatting,.. 179
LARCENY:
definitions of,.
sale of, in courthouse, jail, or at
election polls,.
•
wrongful license to sell,.
selling to Indians,.
•
to habitual drunkards,.
to paupers,.
•
70
266
266
210-212
grand, definition of,..
267
213
punishment of,.
267
213, 214
petit, definition of,
213
on Sunday or election day,
267
•
punishment of,
214
LOG-ROLLING:
37
determining value of the article,
of securities not issued,.
severing thing from realty,.
taking wrecked goods,
committed out of the state,
LEGISLATURE:
disturbance of,....
•
See LEGISLATURE.
214, 215
215
LOGS, &c.:
•
216
defacing marks on,.
155
216
7, 217
LOST TREASURE, &c.:
appropriation of,.
186
LOTTERY:
35
preventing its meeting,.
compelling adjournment of,.
preventing member from acting,.
35
definition of,..
137
•
36
punishment for setting up,.
138
36
declared a public nuisance,.
138
compelling or preventing any offi-
cial act,.
altering draft of bill,.
altering engrossed copy of bill,.
bribery of member,
rolling,..
mmm m
36
36
37
37
37, 38
•
member receiving bribe, or log-
forfeiture of office by member, . . . 38
refusal of witness to attend or to
...
•
disposing of property by chance,. 139
property so offered forfeited,. 141
office, keeping or advertising,. 140
insuring tickets, or offering to, 140, 141
out of the state,
advertisement by persons out of
the state,
• ·
141
141
letting house for such purposes,.. 141
LUNATICS:
See INSANE PERSONS:
buying or selling tickets,
advertising,..
139
139
testify,..
38
LENDING MONEY:
upon claims delivered for collec-
tion,.
64
LETTER:
MAGISTRATE:
threatening letters, opening or
publishing,.
264
defined,.
•
what constitutes sending,
274
MAIMING:
LEVYING:
upon property, without authority, 39
to obtain alms,.
•
LEVYING WAR:
premeditation,
LIBEL:
definition of,.
defined,
•
a misdemeanor,
publication of, defined,
liability of editors, &c.,.
malice presumed,.
its truth may be proved,.
..
110 MAINTENANCE,.
110
110 MALICE, &c.:
110
defined,.
•
21
punishment of,...
109
a defense,
109
M
.. 281
89-91
90
91
92
definitions of,......
one's self to avoid duty,.
design inferred from the injury,.. 92
recovery of injured person, when
92
92
63, 64
280
elviii
INDEX.
MALICIOUS MISCHIEF:
general definition,.
special cases,..
MALPRACTICE:
by attorneys,..
by physicians,
MANSLAUGHTER:
See HOMICIDE.
•
MISDEMEANOR:
•
259
259-265
accidental killing while commit-
ting,.
84
includes wrongful acts not ex-
•
64, 68, 70, 71, 268
aiding in,
87, 149
pressly forbidden,
What are misdemeanors:
271
273
blasphemy,
15
'
profane swearing,
15
MARKET PRICE:
Sabbath breaking,
18
• •
frauds, to affect,
173
MARKS, DEFACING:
on wrecked property, logs or lum-
ber,
maliciously serving process,
compelling adoption of a form of
religious belief,.
preventing performance of religi-
19
19
155
ous act,
19
•
disturbing religious meetings,
19
MARRIAGE, &c.:
bribery, &c., at elections,
22
taking woman with intent to com-
betting on elections, &c.,
22
pel her to marry,..
118
defrauding elector of his vote,
24
• •
incestuous,
128
•
to one already married,.
128
illegal, punishment for solemniz-
voting more than once,
ing,
155
obstructing electors in attending
elections,..
procuring illegal votes,.
24
24
•
25
MASTER:
illegal voting by inhabitant of this
state,
25
killing of, by servant,
82
illegal voting by resident of dif-
MATRON:
ferent district,
25
of female department of the Sing
Sing prison. Her powers and
duties,
illegal voting by unpardoned con-
vict,..
25
335, 336
false statement on being regis-
must keep record of work of con-
tered or voting.
26
victs entitled to earn commuta-
tion of sentence,
disturbance of public meetings, .
27
373
preventing public meetings,.
preventing electors from attend-
MAYHEM:
ing public meetings, . .
See MAIMING.
intimidating electors, .
CNN NN
27
27
27
MEASURES, FALSE:
disobeying inspectors of elections,
27
riotous conduct at elections,..
27
See FALSE WEIGHTS.
keeping false poll list,.
28
MEETINGS, LAWFUL:
misconduct by inspectors,
29
disturbing,...
27, 175
falsely canvassing or returning
votes,
29
MEETINGS, PUBLIC:
preventing electors from attend-
acting as public officer without
qualifying,
31
ing,
27
obstructing executive officer in
MILE STONE:
his duty,.
32
asking excessive fees,
32
•
malicious injury to,
257
asking reward for omitting or de-
MILITARY PUNISHMENTS, &c.:
laying official acts,
32
•
asking fees for services not ren-
preserved,.
283
dered,
33
MILITARY STORES:
of the state, taking of,
..... 187
asking unlawful reward for ser-
vices in extradition,.
33
buying or selling appointments to
MINISTERS, PUBLIC:
office,.
33
See AMBASSADORS.
wrongful exercise of the functions
MISCARRIAGE:
See ABORTION.
MISCHIEVOUS ANIMAL:
liability of owner,
MISDEMEANOR:
definitions of,
punishment of,.
no accessories in,.
•
of an office,.
34
disturbance of legislature,
35
•
preventing member from acting,
36
witness refusing to attend legisla-
86
ture or committee,.
38
witness refusing to testify,
38
misconduct by jurors, &c.,..
40
•
4,
5
6
13
judicial officer, &c., receiving gift, 40
improper attempts to influence
jurors, referecs, &c.,
40
INDEX.
clix
MISDEMEANORS:
drawing jurors fraudulently,.
misconduct by officer in charge of
jurors,
MISDEMEANORS:
41
maliciously procuring search war-
rant,
74
41
rescuing prisoners in certain cases, 42
attempt to escape from other than
state prison,
43
• •
unauthorized communication with
convict in state prison,.
town clerk neglecting to return
names of constables,.
74
74
aiding prisoner to escape, other
than felon,
concealing escaped prisoner,
deceiving witnesses,
destroying evidence,
preventing witness from attend-
ing,
bribing witness,
•
permitting escape of prisoner,.
unlawful acts by ministerial offi-
cers,
refusing to receive prisoner,.
** 958 88
44
public officer giving false certifi-
cate,
75
44
conspiracy,
75
56
judge issuing warrant to remove
56
person held to service,
95
attempt to provoke a challenge,
103
•
56
posting for not fighting,
103
57
assault, or assault and battery,
108
..
publishing libel,
109
threatening to publish libel,
111
58
submitting to attempt to procure
59
•
abortion,
122
delaying to take arrested person
before a magistrate,
concealing still birth,
123
59
unlawful dissection,.
· ·
130, 134
seizing person or property without
omitting to bury,.
131
authority,
59
attaching corpse for debt,
133
undue severity in executing search
warrant,
60
refusing to aid officer in arresting,
&c.,
&c.,
refusing to make an arrest,
680
obstructing officer in his duty,
60
taking extra-judicial oath,
61
administering extra-judicial oath, 61
compounding misdemeanor,.. 61,
62
intimidating officer, &c.,
62
suppressing evidence,.
63
•
buying lands in suit,.
63
•
buying or selling pretended titles,
common barratry,
lending money on claims delivered
for collection,.
purchase of claims by attorney,
justice, &c.,
•
criminal contempt of court,
renewing application to stay trial
63
64
66
of an indictment without leave, 68
grand juror acting after challenge
* a * * * *
64
64
145
enticing into gambling house, 147
omitting to prosecute for gam-
• •
bling,
147
allowed,
68
•
disclosure of depositions taken by
magistrate,
racing,
68
masters allowing gambling on
vessels,
pawnbroking without license, 148
147
147
disclosure of depositions returned
pawnbroker, refusing to show
by grand jury, . .
69
stolen goods....
148
fraud by insolvent applying for
discharge,
racing near a court,.
•
selling liquor in jail or court
house, or near election polls,..
collusion or fraud by attorney..
attorney allowing his name to be
...
** 88
69
concealing purchaser's name, &c., 148
selling pledges prematurely,
148
69
malpractice by intoxicated physi-
cian,
149
•
70
overloading vessels, by which life
70
is endangered,.
150
bursting boiler, &c.,.
150
used in a suit,
71
using fictitious
copartnership
using attorney's name,
71
name,.
150
importing foreign convicts, .
72
•
forging trade-marks,.
151
omission of duty by public officer,
73
keeping dies, &c., for such pur-
doing anything prohibited by
pose,
152
statute,
73
•
fraudulently using genuine trade-
disclosure of indictment,
74
marks,.
152
disclosure of evidence, &c., by
keeping or selling
selling goods so
grand juror,
74
marked,.
152
•
•
instituting suit in false name,
74
·
imitations of trade-marks,.
152
disturbing funeral or burial,
indecent exposure, exhibitions,
buying or selling lottery tickets,. 139
disposing of property dependent
upon drawing of a lottery,.... 139
keeping or advertising lottery
office,
insuring lottery tickets or offer-
ing to,..
letting houses for lottery purposes, 141
keeping gambling apparatus in
•
certain places,
winning at play by fraud,.
•
exacting payment of money won, 143
winning or losing $25 or more.. 144
keeping or letting gambling
houses, tables, &c.,
134
134
140
141
143
143
clx
INDEX.
MISDEMEANORS:
MISDEMEANORS:
definition of "trade mark,".
153
refilling or selling stamped min-
eral water bottles, &c.,.
153
ful assembly,.
defacing marks on wrecked prop-
erty, logs, &c., .
155
officer unlawfully
detaining
wrecked property, &c.,.
155
fraud in limited partnership,
155
solemnizing illegal marriage, .
155
•
prize fight, aiding in,
unlawful confiuement, &c., of in-
aiding in riot, in some cases,.... 176
participating in a rout or unlaw-
allowing public masquerade,,
·
remaining present at riot, &c., . 177
remaining in an assembly which
becomes unlawful,.
resisting execution of process,
challenging, &c., or betting
176
176
177
•
177
·
178
sane persons,.
156
on,.
178
taking usury,
156
recoutining discharged prisoner,. 156
concealing prisoner to prevent dis-
peace officer neglecting to
report suspicion of,
179
179
charge,
156
innkeeper or carrier refusing guest
or passenger,...
157
maintaining public nuisance,. 162
unlawfully keeping or carrying
• ...
gunpowder,
162
throwing gas-tar into public wa-
ters,..
162
violation of quarantine laws, 163–165
piloting without license,...
165
acting as port warden without
authority,
165
mislabeling drugs, or omitting
label, or putting up prescription
wrongly,.
166
167
selling poison without recording
the sale,..
•
•
refusing to exhibit the record,. 168
selling poison without label,. 168
baling hay without marking,. 166
putting extraneous matter in pack-
ages sold by weight,.
adulterating food, drugs, &c., or
•
•
forcible entry and detainer,
179
•
·
•
180
unlawful re-entry upon lands,... 179
squatting or unlawful intrusion on
lands in any city or village,
shooting, &c., in public places,
official misconduct, not specified,. 182
officer taking interest in public
lease or contract made by him, 182
county clerk not publishing an-
182
nual statement,
obstructing collection of revenue, 182
auctioneer, acting without filing
bond,..
accepting appointment from
other state,..
182
.... 183
selling goods in another state, 183
having two places of busi-
ness,
·
•
• • •
183
183
selling goods at other than
his place of business,. 183
selling property without ad-
vertisement,
selling unlawfully after dark, 184
omitting to render account, 184
fraud or evasion of law by,. 184
canals, weighmaster making false
entry,
•
169
selling them,.
selling, &c., food, &c., when spoiled 170
selling or keeping slungshot,..
169
170
185
carrying concealed weapons, .
170
officer of concealing fraud upon
negligence as to fires,.
171
revenue,
185
refusing to aid in extinguishing
drawing off water from, un-
fire in woods....
171
lawfully,
185
obstructing attempts to extinguish
bribery of canal officer to
fires,
171
permit the same,
185
• •
maintaining ferry without author-
fraudulent appropriation of lost
ity,...
171
treasure, &c.,
185
•
•
violating condition of recognizance
to keep a ferry,.
false statement in reference to
171
taxes,
186
railroad, neglect to sound bell or
having burglar's tools,
197
•
•
whistle at crossing,.
172
•
unlawfully entering buildings not
intoxication of engineer, conduc-
tor, or driver,.
dwellings,.
197
172
petit larceny,
214
violation of duty by any officer of, 172
neglect to guard ice-cuttings..... 172
unlawfully using net or weir in
Hudson river....
exposing in public any one with
contagious disease,
taking wrecked goods, &c.,.
evading or injuring gas meter,.
extortion under color of official
216
216
•
173
•
right,.
221
•
173
•
attempting extortion by verbal
threat,..
222
false statements, to affect market
price,...
173
•
receiving money in false charac-
ter,
223
publishing, in newspaper,
173
• •
eavesdropping,
178
racing upon highways,.
174
disturbing any lawful meeting,.. 175
personating officer, fireman, &c.,. 223
using false weights or measures,. 229
assignments, with preferences, in
cases not allowed by law, 231
•
INDEX..
clxi
MISDEMEANORS:
fraudulent conveyances,.
230
fraudulent removal or conceal-
ment of property,
231
•
MISDEMEANORS:
presenting false claim to public
officer,..
intimidating employers or labor-
268
·
fraudulent insolvency,
240
•
ers,
269
fictitious subscription for stock of
corporation,
241
voting unlawfully at town meet-
ing,
269
corporation, unauthorized use of
names in prospectus,
242
injurious acts not expressly pro-
hibited,
271
MISTAKE OF FACT:
corporate affairs,
246
officer refusing inspection of
books,
246
misconduct by directors of,.. 242
issuing excessive circulation, 244
excessive indorsement
guarantee,
or
245
officer overdrawing account, 245
insolvent, &c., bank receiv-
ing deposits,.
false report of condition of
disproving criminal intent is a de-
fense,..
MOCK AUCTIONS,.
MORBID CRIMINAL PROPENSITY,
245
MORTGAGE:
9
226
10
of lands under adverse possession, 64
MUTILATION OF DOCUMENTS,
fraudulent insolvency of di-
45, 264, 265
rectors liable,
247
NAME:
•
sive debt,
violations of duty of director, 247
railroad, contracting exces-
keeping an office for unlawful sale
.. •
of passenger tickets,.
malicious injury to mile-board,
guide-post, &c.,
to telegraph line,..
malicious mischief, not specified,.
killing or cruelly treating
animals,
bringing action in a false name, . 74
NAVIGATION LAWS:
247
violation of,
267
251
NEGLECT, &c.:
defined,..
280
257
258 NEWSPAPERS:
259
publishing false statements,
... 173
•
NIGHT TIME:
259
causing animals to fight,
259
definition,
189, 198
keeping a house for animals to
NUISANCE, PUBLIC:
fight,
259
wounding or trapping birds
definition of,.
158
in cemetery,..
260
maiutaining, &c., is a misdemeanor, 162
malicious injuries to freeholds 261
malicious injuries to standing
O
crops,
262
OATH:
removing or defacing land-
marks,
262
•
interfering with piers, booms
or dams,.
263
injuring dams, &c.,
263
•
removing buoy or beacon in
defined, in reference to perjury.. 49
of office, violation of, not perjury, 49
extra judicial, taking or adminis-
tering,
OBSTRUCTING OFFICER:
61
New York harbor,
261
in discharge of duty,
. 60
•
•
opening or publishing sealed
letters,
OFFENSES:
264
See CRIMES.
disclosing telegraphic dis-
patch,
265
OFFICE:
concealing telegraphic dis-
patch,
265
acting in, without qualifying,
buying or selling appointment to,
injuring work of art or im-
265
liquor,
266
•
266
•
•
266
267
to paupers,
267
•
provement in city, &c.,
granting wrongful license to sell
selling liquor, &c., to Indians,
intoxication in public,..
selling liquor to habitual drunk-
ards,
• •
•
on Sunday or election day,.. 267
violation of navigation laws, 267
attorney defending suit brought
by his partner or himself,
...
executive, punishment for attempt
to bribe one,
•
punishment for officer, asking or
•
·
receiving bribe,.
for asking excessive fees,.
taking reward for omitting or de-
laying official acts,
such appointment void,
wrongful exercise of,.
31
33, 34
34
34
•
OFFICER:
268
resisting officer,
31
32
32
32
32
clxii
INDEX.
OFFICER:
taking fees for services not ren-
dered,
33
taking unlawful reward for ser-
vices in extradition,
33
refusal to surrender seal, &c., to
successor,
34
OFFICERS OF STATE PRISONS:
And see GUARDS.
INSPECTORS.
INSTRUCTORS.
KEEPERS.
MATRON.
PHYSICIANS.
de facto, validity of his acts,.. 31, 34
administrative, same provisions
•
apply as to executive,.
judicial, offering bribes to,.
taking bribes,.
receiving gifts from parties,
•
•
•
aiding to remove persons held to
service, from the State,.
ministerial, permitting escape of
prisoner,
injury to records, or embezzle-
ment,..
committing other unlawful acts,.
refusing to receive prisoner into
40
vessels,
WARDENS.
35
39
OMISSION OF DUTY:
when punishable,..
73, 274
39 OVERLOADING:
... 86, 150
95
OVERT ACT:
58
when necessary to constitute con-
spiracy,.
78
58
P
58
PARDON:
his custody,
59
•
delaying to take arrested person
before magistrate,
59
public; arresting, seizing property,
PARENT:
&c., without authority,.
59
of convict of perjury, does not
make him a competent wit-
ness,
deserting or neglecting child,.. 121
53, 54
refusing aid to, in making arrest,
&c.,
60
obstructing, in discharge of duty, 60
PARTIES TO CRIMES: ·
classification,
12
attempt to intimidate,.
62
omission of duty by,.
73
disclosing indictment having been
PARTNERSHIP, LIMITED:
fraud in,.
155
found,
74
PASSAGE TICKETS:
giving false certificates,...
75
sale by agents, regulated,...
249
detaining wrecked property,
155
•
sale forbidden except by agents,. 249
embezzlement by,
181
•
sale of certificates or receipts, .
250
taking an interest in lease or con-
tract made by him,.
conspiracy to sell,...
251
182
punishment for such sale,.
251
official misconduct by,
182
• ·
offices for such sales, disorderly
executing search warrant with
houses, .
251
•
undue severity,
60
•
sales by owners, pursers, &c., al-
defined,.
281
lowed,.
252
OFFICERS OF STATE PRISONS:
and by station masters and con-
designation of,..
310
ductors,.
252
who are not eligible,
313
what it must contain,
252
•
how suspended,.
appointments and removals to be
entered in minutes, .
oath of office,...
official bonds prescribed,
where to be filed,.
•
313
penalty for selling incomplete one, 253
requisites of indictment,.
253
314 PASSENGER:
314
expulsion of, from vehicle,...... 107
315
•
•
315 PAUPERS:
salaries prescribed, .
315
selling liquor to, .
. 267
how paid,
317
PAWNBROKER:
restriction as to perquisites,
317
• •
officers cannot give evidence of
acting without license,
148
debt,..
317
refusing to show stolen goods,
148
• •
•
how to verify reports,
318
selling pledge too soon,
148
when to make reports, .
318
concealing name of purchaser, &c., 148
•
must not be interested in con-
PEACE OF THE STATE:
tracts, .
318
penalty for employing convicts at
conspiracy against.
78
prohibited work,
362
PENAL CODE:
prosecution therefor,.
363
exempt from jury and militia duty, 399
And see CHAPLAINS.
CLERKS.
title of,
effect of,
its objects,
not to be, strictly construed,.
125 LO
5
INDEX.
clxiit
PERJURY:
PRINCIPAL:
definition,
46
who is,..
13
oath no defense, .
irregularity in administering the
when the making of a deposition,
&c., is deemed complete,.
incompetency of witness no de-
PRINTING:
50
included in writing,.
281
51 PRISON:
fense,
51
escape from, how punishable,... 43
attempt to escape from,.
43
witness need not know that his
evidence was material,.
the word defined,.
44
51
•
stating what one does not know
selling liquor in,.
70
And see AUBURN PRISON.
to be true,
51
CLINTON PRISON.
punishment of,..
51
summary committal of suspected
witnesses, .
...
securing necessary witnesses and
documents to prove it, ..
convict of, when incompetent as
a witness,
subornation of,.
PERSON:
D
53
52
COUNTY JAILS.
SING SING PRISON.
STATE PRISONS.
52 PRISONERS:
rescuing from custody,
42
53
m m
re-arrest after escape,
43
aiding to escape,.
44
the word defined,.
45
defined,
PERSONAL PROPERTY:
defined,.
281
.. •
PERSONATING ANOTHER FALSE-
LY,
223
officer, fireman, &c.,.
223
PRIZE FIGHT:
PETIT TREASON:
aiding in,
•
challenging, &c.,.
•
abolished,
82
betting on, &c...
PHYSICIANS:
challenge to, defined,
• ·
282
permitting escape of,.
58
refusing to receive, into custody,
59
rescue or escape in county pro-
claimed in insurrection,.....
reconfining, when discharged,.
concealing, to prevent discharge,. 156
60
156
..
178
178
178
178
malpractice from intoxication, 87, 149
of state prison, official duties, 343-345
official reports of,.
where to reside,.
PIERS:
interfering with,
PILES:
leaving the state to engage in,... 178
duty of peace officers to report
suspicion of,
344, 345
345
PROCESS:
263
...
263
removing from embankments,
PILOTING:
without license, except coasting
PIPES, GAS OR WATER:
steamer,
#
when it may be served on Sunday,
maliciously serving, in holy time,
resisting its execution in county
proclaimed in insurrection,...
disobeying or resisting is con-
tempt,
•
combination to resist,.
165
PROCLAMATION, &c.:
false publication of,......
265 PROFANE SWEARING:
179
18
19
60
67
177
270
injuring,
POISON:
sale must be recorded,
167
definition,
punishment of,.
15
•
15
•
refusing to exhibit record,.
168
summary conviction for,.
15
selling without label,
168
PROHIBITED ACTS:
See ATTEMPTS TO KILL.
when misdemeanors, .
73
POISONING:
PROPERTY:
food, wells, &c.,.
149
defined,..
281, 282
cattle,
259
PROSECUTION OF CRIMINALS:
PORT WARDEN:
how regulated,...
5
acting as, without authority, .... 165
PREMEDITATION:
compounding or delaying,.
62
PUBLICATIONS:
in case of murder,.
83
what are contempts,.
67
PRETENDED TITLES:
PUBLIC DOCUMENTS:
buying or selling,.
63
stealing or destroying, . . . .
45
clxiv
INDEX.
PUNISHMENTS:
must be preceded by conviction,.
of felonies and misdemeanors,.
who are liable,.
mitigation of,.
enumerated,
•
how determined, .
Q
QUARANTINE LAWS:
violation of,..
•
5
6
•
7
273
REFEREE:
disturbing proceedings of is a con-
tempt,
And see JURORS, REFEREES, &c.
OFFICERS, JUDICIAL.
66
3
6
REFUSAL:
to receive prisoner into custody,.
59
to make an arrest, . .
to aid officer in making arrest, &c.,
60
60
163
REGISTRY, FALSE:
See ELECTION.
RELIGIOUS ACT:
preventing performance of,..... 19
17 RELIGIOUS BELIEF:
20
compelling adoption of,......
19
69
147
RELIGIOUS MEETINGS:
•
147
disturbance of,..
19
174
REMEDIES:
RACING, &c.:
on Sunday,..
R
near religious meetings,.
near a court,..
declared a nuisance,
how punished,.
•
on highways,.
RAFFLE:
See LOTTERY.
RAILROAD:
civil, preserved, .
RESCUING PRISONERS:
283
from custody,. . . .
42
neglect to sound bell or whistle at
in county proclaimed in insurrec-
crossings,
172
tion,.
60
intoxication of engineer, conduc-
tor, or driver,.
RESISTING:
172
neglect of duty by any officer of, 172
malicious injury to,.
257
tickets of foreign,.
253
a statute. When it is levying war,
election officers, .
officers in general, in their duty, 32, 60
by rescuing prisoners,
•
25
21
27
RAILROAD COMPANY:
See CORPORATION. »
RAILROAD TICKETS:
See PASSAGE TICKETS.
RAPE:
defined,
when physical ability must be
proved,
two degrees,.
punishment of,.
•
REAL PROPERTY:
defined...
RE-ARREST:
of escaped prisoner,.
RECEIPT:
by retaking goods,
•
REVENUE:
112, 116
execution of process,
42
42
177
•
659
60
67
in county, declared in insur-
rection,
order of court, is contempt,.
obstructing collection of,. . . . . ... 182
. . .
116
RIOT:
117
definition,
175
117
punishment of,...
175
refusing aid in quelling,.
177
remaining present at,
177
281
at elections,
28
29
43 ROBBERY:
defined,.
254, 255
98-100
109
fictitious, for goods,.
duplicate must be marked so,.... 255
must be canceled on re-delivery
of property, when,.
RECEIVING:
256
216
summary arrest therefor,.
two degrees,.
in the 1st degree, punishment of, 100
in the 2d degree, punishment of, 101
by two or more, punishment of,. 101
ROUT:
definition,
punishment of,.
being present at,
•
176
176
•
177
Stolen goods,.
RECORDING
or filing false instruments,...... 45
RECORDS:
S.
penalty for stealing or destroying
them, .
45
SABBATH-BREAKING:
injury to, by ministerial officer or
deputy,..
58
definition,
what time is included,
16
• · •
16
INDEX.
clxv
SABBATH-BREAKING:
persons observing another day
than Sunday,
what traffic prohibited,
•
punishment of,.
SACRILEGE,..
SALTPETRE:
communications with convict in,
STATE PRISONS:
17
unauthorized,.
18
the state prisons designated,
18
197, 260
among them,.
reports how to be made,.
87
187
convicts how to be distributed
74
289
290
•
290
399
officers of, exempt from jury and
militia duty,
what punishments are allowed in, 399
restrictions upon use of liquor in, 399
who may visit them,
convicts in, how brought up to
testify,
• •
in what cases competent,
how brought up for trial,.
And see AUBURN PRISON.
CLINTON PRISON.
• •
400
400, 401
401
402
liability of persons keeping it un-
lawfully,
SALT WORKS:
injuries to,
•
SEARCH WARRANT:
using undue severity,
maliciously procuring,
SECOND OFFENSES,
SEDUCTION,
punishment of,..
marriage a defense,.
· ·
60
74
275-277
118
SING SING PRISON.
SHERIFFS:
to keep county jails,.
their compensation for transport-
ing convicts,
account thereof,.
•
how paid,
289
STATUTES:
120 STATUTE: RESISTANCE TO:
121
21
when it amounts to levying war,.
violation of, when a misdemeanor, 73
which continue in force desig-
290, 291
nated,
283-286
•
291
292
STAY OF TRIAL:
powers and duties of, in removal
of prisoners,
298, 299
And see OFFICER, MINISTERIAL.
STEAMBOAT:
SHOOTING, &c.,
in public places,
SIGNATURE:
defined,
•
101
180
renewal of application for, with-
out leave,
liability of persons in charge of,. 86
explosion, &c.,
•
68
150
STEAM ENGINE:
281
explosion, &c., . .
. 87, 150
SING SING PRISON:
STILL BIRTH:
posed of,.
female department,
Sing Sing guards,
disposed of,
farm, how managed,
receipts of the warden, how dis-
powers and duties of matron of
335
concealing,
... 123
333
STOLEN GOODS:
receiving,
216
•
•
335, 336
STRIKES:
349, 352
359
See INTIMIDATING.
STUPEFYING DRUGS:
administering,
SUBORNATION OF PERJURY:
102
bodies of convicts dying at, how
children born at, how supported, 359
warden of, may let services of
convicts for cutting stone,
370
what the coutract must contain, . 370
SLUNG SHOT:
defined,.
how punishable,
•
•
making or keeping,.
170 SUICIDE:
See CRIME AGAINST NATURE.
SODOMY:
SOLICITOR:
included in the term attorney,... 65
SPIRITUOUS LIQUOR:
definition,
no forfeiture for,
attempting, defined,.
D
See LIQUOR.
SQUATTING:
53
53
79
79
79
intoxication no excuse,
80
•
aiding, defined,
80
punishment of,.
80
•
inental incapacity of suicide is no
defenso,.
80
what proof required, .
aiding attempt at, defined,
82
80
179
punishment of,...
80
SUIT:
43
...
instituting in false name,..
74
upon lands,
STATE PRISONS:
escapes from,.
clxvi
INDEX.
SUMMARY ARREST:
for disturbance at elections,..
SUMMARY COMMITTAL:
for perjury,...
SUMMARY CONVICTION:
for profane swearing, .
SUPPRESSING EVIDENCE,
28 UMPIRE:
U
See OFFICERS, JUDICIAL.
52 | UNITED STATES PRISONERS:
how received and detained in state
prisons and county jails,.. 299, 300
escapes of,.
•
TAXES:
T
15
300
63
duties of prison officers, respect-
ing,.
301
cannot earn commutation of sen-
tence,
373
•
187
definition of,
punishment of,.
258
being present at,.
•
265 USURY:
265
176
176
177
obstructing the collection of,.... 182 UNLAWFUL ASSEMBLY:
false statement as to,....
TELEGRAPH:
malicious injury to,.
disclosing dispatch,
suppressing dispatch,
TESTIMONY:
See WITNESS.
THING IN ACTION:
See BUYING DEMANDS.
THREATENING LETTERS:
taking of, a misdemeanor,... .... 156
V
VESSEL:
destruction of,
227
definition of,
281
VOLUNTARY OATHS:
221
when allowed,.
61
1
VOTING:
See ELECTION.
TOWN MEETING.
sending,
TITLE OF CODE,
TITLES:
buying or selling pretended,.... 63
TOLL HOUSE:
malicious injury to,.
257
TOWN CLERK:
WAGER:
neglect to return names of con-
stables,
TOWN MEETING:
W
voting unlawfully at,
TRADE MARKS:
counterfeiting,
See BETTING.
74 WAIVED PROPERTY:
fraudulent appropriation of,..... 186
269 WAR AGAINST THE STATE:
See LEVYING WAR.
151
keeping dies, &c., to counterfeit,. 152
colorable imitations of,......... 152
fraudulently using genuine ones,. 152
definition of,...
•
153
•
153
153, 154
"affixing" defined,.
refilling or keeping stamped bot-
tles,
search for stamped bottles,. 154
TRAVELING:
TREASON:
punishment of,.
17
20
21
2283
WARDENS:
duties of, in removal of con-
victs,.
293, 294
name warden preferred to
"
"}
agent and warden," 311 note
to pay salary of other officers,... 317
traveling expenses to be allowed, 317
to reside at the prison,.
• •
320
321
321-325
to attend to the fiscal concerns of
the prison,.
powers and duties of, in respect
to them,..
to keep and render accounts, 326, 327
to report estimates of anticipated
expenses,.
to report receipts and expendi-
on Sunday,.
definition of,.
326
•
petit treason, abolished,.
•
TREASURE, LOST, &c.:
เ
appropriation of..
186
TRIAL OF INDICTMENT:
tures,
to file copies of prison contracts,. 328
to sell useless property,..
to pay sheriffs for transporting
327
329
renewing of application to stay it,
convicts,
329
without leave,.
68
TURNPIKE GATE:
malicious injury to,...
257
to superintend government and
discipline of the prison,. . . . 329
powers and duties in respect
thereto,...
329-332
INDEX.
clxvii
WIFE:
WARDENS:
requisites of wardens' accounts,.. 332
how to be audited,..
332
committing crime under subjec-
tion to husband,..
penalty for neglect to make re-
killing of husband by,
10
82
turns,.
333
penalty for neglect of duty, &c.,. 333
how to contract for provisions for
WILLFULLY:
defined,...
280
prisons,.
355, 356
may confine a disobedient convict
upon short allowance,.
WITNESS:
356
refusing to attend before legisla-
•
or in a solitary cell,.
357
ture or committee, or to testify, 38
penalty for employing convicts at
incompetency of one convicted of
prohibited labor,
362
perjury,.
prosecution therefor,
363
penalty for deceiving,
6353
53
56
•
must make known provisions rela-
tive to commutation of sentence,
.preventing or dissuading from at-
tending,
to convicts,..
373
bribery of,
•
6655
56
57
WAREHOUSE RECEIPTS:
refusal to be sworn or to testify,
is contempt of court,...
67
See RECEIPTS.
WARRANT, SEARCH:
See SEARCH-WARRANT.
WATER PIPES:
WITNESS' PRIVILEGE:
restricted,. .... 65, 104, 144, 180
evidence taken in violation of, not
receivable against him,.
66
injuring,
265
• •
testimony used against him in
perjury,...
279
WAY, PRIVATE:
malicious injury to,...
WORKS OF ART:
257
or improvements, injuring,.
265
WEAPON:
concealed,...
certain assaults with,
See ATTEMPT TO KILL.
WEIGHTS, FALSE:
See FALSE WEIGHTS.
WEIR, &c.:
170
WORSHIP, HOUSE OF:
See HOUSE OF WORSHIP.
•
WRECKED PROPERTY:
unlawful detention of,
defacing marks upon,
155
155
WRITING:
using in Hudson river,
173
defined,.
281
•
?
4
UNIVERSITY OF MICHIGAN
3 9015 03067 7382
Filmer by Preservation NEH 1994
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