to the officer whose duty it is to execute the judgment; and no other warrant or authority is necessary to justify or require its execution. People Kelly, 2 N. Y. Cr. 428; People ex rel. Trainor v. Baker, 89 N. Y. 460; People v. Bradner, 107 N. Y. 12; People ex rel. Evans v. McEwen, 2 N. Y. Cr. 307, 67 How. 105; People v. Holmes, 41 Hun, 55. § 487. Commitment of the defendant. — If the judgment be imprisonment, or a fine and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained, until the judgment be complied with. Imprisonment before sentence does not apply. People v. Warden, etc. 66 NY. 345. Misdemeanors. People v. Lincoln, 25 Hun, 306, overruling, People McEwen, 62 How. Pr. 226. People v. O'Neil, 47 Hun, 156; People ex rel. Trainor v. Baker, 89 N. Y. 461; Matter of Hoffman, 1 N. Y. Cr. 484. § 488. Judgment of imprisonment, by whom and how executed. When the judgment is imprisonment in a county jail, or a fine, and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county. In all other cases, when the sentence is imprisonment, the sheriff of the county must deliver the defendant to the proper officer, in execution of the judgment. The judgment, not the mittimus, holds prisoner. People ex rel. Trainor v. Baker, 89 N. Y. 460; 2 N. Y. Cr. 307. People v. Lincoln, 25 Hun, 306. 489. Duty of sheriff. If the judgment be imprisonment, except in a county jail, the sheriff must deliver a copy of the entry of the judgment upon the minutes of the court, together with the body of the defendant, to the keeper of the prison, in which the defendant is to be imprisoned. People v. O'Neil, 47 Hun, 156. § 490. Id.— The sheriff or his deputy, while conveying the defendant to the proper prison, in execution of a judgment of imprisonment, has the same authority to require the assistance of any citizen of this state, in securing the defendant, and in retaking him if he escape, as if the sheriff were in his own county; and every person who refuses or neglects to assist the sheriff, when so required, is punishable, as if the sheriff were in his own county. TITLE X. General Provisions in Relation to the Punishment of Crimes. CHAP. 1. The death penalty. 2. Second offenses, habitual criminals, and special penal discipline. CHAPTER I. SEC. 491. Death warrant. 492. Time of execution. 493. Judge must transmit certain papers to govenor. 495. Governor only to reprieve, etc. 496. If convict becomes insane, sheriff to impanel jury. 498. Inquisition, etc 499. Sheriff to transmit inquisition to governor, etc. 500 If female convict is pregnant, etc. 501. Inquisition, etc. 502. Sheriff to transmit inquisition to governor, etc. 503. When day of execution is passed, etc. 504. Court to inquire, etc. 505. Death penalty; mode of infliction. 506. Id.; where inflicted. 507. Id.; persons present, etc. 508. Id.; certificate after execution. 509. Id.; disability of warden. § 491. Death warrant. When a defendant is sentenced to the punishment of death, the judge or judges holding the court at which the conviction takes place, or a majority of them, of whom the judge presiding must be one, must make out, sign and deliver to the sheriff of the county, a warrant stating the conviction and sentence, and appointing the week within which sentence must be executed. Said warrant must be directed to the agent and warden of the state prison of this state designated by law as the place of confinement for convicts sentenced to imprisonment in a state prison in the judicial district wherein such conviction has taken place, commanding such agent and warden to do execution of the sentence upon some day within the week thus appointed. Within ten days after the issuing of such warrant the said sheriff must deliver the defendant, together with the warrant, to the agent and warden of the state prison therein named. From the time of said delivery to the said agent and warden, until the infliction of the punishment of death upon him, unless he shall be lawfully discharge from such imprisonment, the defendant shall be kept in solitary confinement at said state prison, and no person shall be allowed access to him without an order of the court, cxcept the officers of the prison, his counsel, his physician, a priest or minister of religion, if he shall desire one, and the members of his family. [IN EFFECT JAN. 1, 1889. AM'D CH. 489 OF 1888. SEE §§ 10, 11 AND 12, ID. FOLLOWING § 509 POST.] People ex rel Trezza v. Brush, 60 Hun, 401; People ex rel. Kemmler . Durston, 119 N. Y. 575; People v. Nolan, 115 N. Y., 660; 2 Sil. (Ct. App.) 398. § 492. Time of execution. The week so appointed must begin not less than four weeks and not more than eight weeks after the sentence. The time of the execution within said week shall be left to the discretion of the agent and warden to whom the warrant is directed; but no previous announcement of the day or hour of the execution shall be made, except to the persons who shall be invited or permitted to be present at said execution as hereinafter provided. IN EFFECT JAN. 1, 1889. AM'D CH. 489 OF 1888. SEE §§ 10, 11 AND 12, ID. FOLLOWING § 509 POST.] People ex rel. Kemmler v Durston, 119 N. Y. 575; Thomas v. People, 67 d., 21; Haggerty v. People, 53 id., 476; Matter of Ferris, 35 id., 262; 32 How. 411. § 493. Judge must transmit certain papers to governor.-The judge, presiding at the term at which the conviction took place, must immediately thereupon transmit to the governor a statement of the conviction and sentence, with the notes of testimony taken upon the trial by him, or the notes, written out, taken by a stenographer or assistant stenographer, attending the court or term pursuant to law. § 494. Governor may consult judges, etc.-The governor is authorized to require the opinion of the judges of the court of appeals, justices of the supreme court, and the attorney-general, or of any of them, upon a statement so furnished. § 495. Governor only to reprieve, except, etc.- No judge, court, or officer, other than the governor, can reprieve or suspend the execution of a defendant sentenced to the punishment of death, except where a sheriff is authorized so to do, in a case and in the manner prescribed in the following sections of this chapter. This section does not apply to a stay of proceedings upon an appeal or writ of error. § 496. If convict becomes insane, etc.- If, after a defendant has been sentenced to the punishment of death, there is reasonable ground to believe that he has become insane, the sheriff of the county in which the conviction took place, with the concurrence of a justice of the supreme court, or the county judge of the county, who may make an order to that effect, must impanel a jury of twelve persons of that county, qualified to serve as jurors in a court of record, to examine the question of the sanity of the defendant. The sheriff must give at least seven days' notice of the time and place of the meeting of the jury to the district-attorney of the county. Section 108 of the Code of Civil Procedure regulates the impaneling of such a jury, and the proceedings upon the inquisition so far as it is applicable. § 497. Duty of district attorney. - The district attorney must attend the inquiry. He may produce witnesses before the jury; for which purpose he has the same power to issue subpoenas as for witnesses to attend a grand jury, and disobedience thereto may be punished by the supreme court, at any term thereof, in the same man. ner as disobedience to process issued by that court. [A'MD BY CHAP. 880 OF 1895. In effect Jan. 1, 1896.] § 498. Inquisition; suspension of execution. The inquisition of the jury must be signed by the jurors and the sheriff. If it be found by the inquisition that the defendant is insane, the sheriff must suspend execution of the warrant directing the defendant's death, until he receives a warrant from the governor, directing that the defendant be executed. § 499. Sheriff to transmit inquisition to governor; governor's duty. The sheriff must immediately transmit the inquisition to the governor; who, as soon as he is satisfied of the sanity of the defendant, or of his restoration to sanity, must issue his warrant, appointing a time and place for the execution of the latter, pursuant to his sentence, unless the sentence is commuted or the convict pardoned, and may in the meantime give directions for the disposition and custody of the defendant. § 500. If female convict is pregnant, etc. — If there is reasonable ground to believe that a female defendant, sentenced to the punishment of death, is pregnant, the sheriff of the county where the conviction took place must impanel a jury of six physicians to inquire into her pregnancy. Sections 497 and 498 of this Code apply to the proceedings upon the inquisition, except that the sheriff may, in his discretion, require one or more of the physicians composing the jury to attend from an adjoining county. A physician, acting as a juror upon such an inquisition, need not be qualified to serve as a juror in a court of record. § 501. Inquisition, etc. The inquisition of the jury must be signed by the jurors and the sheriff. If it is found by the inquisition that the defendant is quick with child, the sheriff must suspend the execution of the warrant directing her execution, until he receives a warrant from the governor, directing that the convict be executed. § 502. Sheriff to transmit inquisition to governor ; governor's duty. — The sheriff must immediately transmit the inquisition to the governor, who, as soon as he is satisfied that the defendant is no longer quick with child, may issue his warrant, appointing a time and place for her execution, pursuant to her sentence, or may commute her puishment to imprisonment for life. Whenever, for § 503. When day of execution passed, etc. any reason other than insanity or pregnancy, a defendant sentenced to the punishment of death has not been executed pursuant to the sentence, at the time specified thereby, and the sentence or judgment inflicting the punishment stands in full force, the court of appeals, or a judge thereof, or the supreme court, or a justice thereof, upon application by the attorney-general or of the district attorney of the county where the conviction was had, must make an order directed to the agent and warden or other officer in whose custody said defendant may be, commanding him to bring the convict before the court of appeals or a term of the appellate division of the supreme court in the department, or a term of the supreme court in the county where the conviction was had. If the defendant be at large, a warrant may be issued by the court of appeals or a judge thereof, or by the supreme court or a justice thereof, directing any sheriff or other officer to bring the defendant before the court of appeals or a term of the appellate division of the supreme court thereof, or before a term of the supreme court in that county. [AM'D BY CHAP. 880 OF 1895. In effect Jan. 1, 1896. See §§ 10, 11 and 12 following § 509 post.] People ex rel. Kemmler v. Durston, 119 N. Y. 575; People v. Riley, 15 W. Dig. 294. § 504. Court to inquire, etc. - Upon the defendant being brought before the court, it must inquire into the circumstances, and if no legal reason exists against the execution of the sentence, it must issue its warrant to the agent and warden of the state prison mentioned in the original warrant and sentence, under the hands of the judge or judges, or a majority of them, of whom the judge presiding must be one, commanding the said agent and warden to do execution of the sentence during the week appointed therein. The warrant must be obeyed by the agent and warden accordingly. The time of the execution within said week shall be left to the discretion of the agent and warden, to whom the warrant is directed; but no previous announcement of the day or hour of the execution shall be made, except to the persons who shall be invited or permitted to be present at said execution as hereinafter provided. [IN EFFECT Jan. 1, 1889. AM'D CH. 489 OF 1888. SEE §§ 10, 11 AND 12, ID. FOL LOWING § 509 POST ] People ex rel. Kemmler v. Durston, 119 N. Y. 575; People v. Lyons, 6 N. Y. Cr. 133; Matter of Ferris, 35 N. Y. 262; 32 How. 411. |