85. Criminal action defined. — - The proceeding, by which a party charged with a crime is accused and brought to trial and punishment, is known as a criminal action.

86. Parties to a criminal action. A criminal action is prosecuted in the name of the people of the State of New York, as plaintiffs, against the party charged with crime.

See People v. Johnson, 104 N. Y. 216; 5 N. Y. Cr. Rep. 219.

$7. The party prosecuted known as defendant. - The party prosecuted in a criminal action is designated in this Code as the defendant.

See People v. Johnson, 104 N. Y. 216; 5 N. Y. Cr. Rep. 219.

8. Rights of defendant in a criminal action.- In a criminal action the defendant is entitled:

1. To a speedy and public trial;

2. To be allowed counsel as in civil actions, or he may appear and defend in person and with counsel; and,

3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, or where the testimony of a witness on the part of the people, has been taken according to the provisions of section two hundred and nineteen of this Code, the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state.

Subdiv. 1. See 5 L. R. A. 832, note; Rapalje's Crim. Proc., § 152; Desty's Penal Code, Cal., § 686; 4 Crim. L. Mag. 801; Cooley's Const. Lim. (5th ed.) 379, 380; 4 Amer. & Eng. Encyc. of Law, 812; United States v. Fox, 3 Mont.

512.

The exclusion of jurors summoned for the term, but not impaneled, is not a deprivation of the right of public trial, People v. Sprague, 54 Cal. 491. Subdiv. 2. See Cooley's Const. Lim. (5th ed.) 405; 21 Am. L. Reg. (N. S.) 625. A prisoner is entitled to a private consultation with counsel after having been committed to await action of grand jury. People, ex rel. Burgess, v. Risley, 66 How. Pr. 67.

He is also entitled to be present with counsel when the jury view the premises where a crime is alleged to have been committed, pursuant to section 411, post. People v. Palmer, 43 Hun, 401, 407; 2 N. Y. Cr. Rep. 106.

In trials by court martial the accused is entitled to counsel. People, ex rel. Garling, v. Van Allen, 55 N. Y. 31; People v. Sharp, 45 Hun, 492; People v. Mayor, etc., 19 id. 452.

Subdiv. 3. See Rapalje's Crim. Proc., § 279.

It is sufficient, if the accused be once confronted by the witnesses against him at any stage of the proceeding upon the same accusation and have an opportunity of cross-examination. People v. Penhollow, 5 N. Y. Cr. Rep. 41; 42 Hun, 103.

The provision that the deposition of a witness, taken before the magistrate in the presence of the defendant, who at the time had an opportunity of crossexamining the witness, may, under certain circumstances, be read in evidence upon the trial, is not unconstitutional. People v. Williams, 35 Hun, 516; 3 N. Y. Cr. Rep. 63; People v. Fish, 125 N. Y. 152.

To same effect, Territory v. Evans, 12 Crim. L. Mag. 446; State v. McO'Blenis, 24 Mo. 412; Summons v. State, 5 Ohio St. 340; Gilbreath v. State, 26 Tex. App. 318; People v. Brotherton, 47 Cal. 388; People v. Leong Sing, 77 id. 117.

"Due diligence." See People v. Murphy, 1 N. Y. Cr. Rep. 102.

§ 9. Second prosecution for the same crime prohibited.No person can be subjected to a second prosecution for a crime for which he has once been prosecuted, and duly convicted or acquitted.

State Const., art. 1, § 6; Fed. Const., fifth amendment; Penal Code, § 36: Cooley Const. Lim. (5th ed.) 400; 1 Bish. Crim. Law (7th ed.), §§ 978-1070; 17 Am. Law Rev. (N. S.) 735; 33 Am. Dec. 96, note; 11 Am. & Eng. Encyc. of Law, 926; 6 Crim. Law Mag. 61; 4 id. 27, 487; 18 Cent. L. J. 43, 63; Rapalje Crim. Proc., § 124.

The rules and authorities as to the effect of a former acquittal or former con viction will be found collected in Abbott's Crim. Brief, 64, etc., 443, etc.

The incorporation into the federal constitution and into constitutions of states of the phrase "twice put in jeopardy for the same offense," was but the recognition and the application in a stronger form of expression of the com mon-law doctrine. People v. Palmer, 109 N. Y. 417. See, also, Canter v People, 5 Abb. Pr. (N. S.) 27

"In a legal sense * *

*

a prisoner is not once put in jeopardy until th verdict of the jury is rendered for or against him." Spencer, J., in People Goodwin, 18 Johns. 187. See People v. Green, 13 Wend. 55.

A prisoner is not put in jeopardy where the evidence fails to establish th offense charged. Canter v. People, 1 Abb. Dec. 305.

In this state a prisoner is considered in jeopardy when he has been arraigne and pleaded to a valid indictment, a witness has been sworn and evidenc given, and then, without his consent, a juror has been withdrawn or the jur discharged. King v. People, 5 Hun, 297; Hilands v. Com. (Penn.), 33 Alb. I J. 147.

The pendency of a prior indictment, to which he has pleaded, cannot b pleaded in abatement. People v. Fisher, 14 Wend. 9.

The plea of autrefois convict is supported by proof of a lawful trial and verdict, though no judgment be given upon it. Shepherd v. People, 25 N. Y. 406; reversing 23 How. 337; People v. Cramer, 5 Park. 171. See, also, People v. Barrett, 1 Johns. 66.

A verdict upon which no judgment could have been given cannot be pleaded as a former acquittal. People v. Olcott, 2 Johns. Cas. 301.

Former acquittal not a bar, the act being the same where the intent was different. People v. Warren, 1 Park. 338.

When one offense is committed the more effectually to carry into effect another, an acquittal of the latter is no bar to an indictment for the former. People v. Ward, 15 Wend. 231.

A former trial and acquittal is no bar unless the offenses charged in both indictments are the same in law as well as in fact. 4 Bl. Com. 336; 1 Russ. Crimes, 829, 836; People v. Burch, 5 N. Y. Cr. Rep. 29; Com. v. Roby, 12 Pick. 496; Burns v. People, 1 Park. 182; People v. Nichols, 3 id. 579; People v. Richards, 44 Hun, 288; People v. Saunders, 4 Park. 106.

Where, by the same act, defendant murders two persons, conviction or sequittal of the murder of one is no bar to a prosecution for the murder of the other. People v. Majors, 65 Cal. 138; 52 Am. Rep. 295.

A verdict of acquittal, upon the trial of an indictment, for robbery is no bar to a subsequent indictment and conviction for perjury, committed by defendant as a witness on his own behalf, on trial of the former indictment, though the testimony on the two trials be substantially the same. People v. Scully, 3

N. Y. Cr. Rep. 244.

A trial and acquittal of robbery may be pleaded in bar to an indictment for larceny of the same property. People v. McGowan, 17 Wend. 386; People v. Smith, 57 Barb. 46.

An acquittal upon an indictment for larceny, no bar to an indictment for embezzlement of same property. People v. Burch, 5 N. Y. Cr. Rep. 29; 1 N. Y. State Rep. 751.

A verdict of acquittal for stealing the same goods, which were charged in the former indictment as the property of another owner, cannot be pleaded in bar. Hughes' Case, 4 C. H. Rec. 132.

Single act constituting two separate offenses, when conviction for one offense does not bar prosecution for the other. People, ex rel., etc., v. Sadler, 3 N. Y. Cr. Rep. 471; People v. Miller, id. 475. See, also, 26 Alb. L. J. 324; 15 Cox Crim, Cas. 85; 36 Eng. Rep. 500; 16 Am. St. Rep. 224; 14 id. 572.

Conviction for assault and battery no bar to indictment for murder, where the person assaulted subsequently dies of the blows. Burns v. People, 1 Park. 182.

A conviction for uttering a forged bond is a bar to a subsequent conviction, under an indictment charging the uttering, at the same time, of the mortgage accompanying such bond, and purporting to secure the performance of its conditions. People v. Peck, 4 N. Y. Cr. Rep. 148.

Former acquittal on an indictment charging an indorsement, may be pleaded in bar to another charging forgery of the same note and indorsement. People 7. Allen, 1 Park. 445.

So, also, an acquittal on an indictment charging the prisoner with having in his possession a certain counterfeit note with intent to utter it, may be pleaded

in bar to a subsequent indictment for having such other notes in his possession for a like intent, where all were in possession at the same time. People v. Van Keuren, 5 Park. 66.

An acquittal on the merits of the offense of forging an order in writing is pleadable in bar to a subsequent prosecution for obtaining money on the false pretense that the instrument was true. People v. Krummer, 4 Park. 217; 1 Seld. 549.

To an indictment for rape the defendant cannot plead in bar a former conviction for assault and battery arising out of the same transaction. People v. Saunders, 4 Park. 196.

An acquittal on a former indictment for nuisance is prosecution, where the erection is not a nuisance per se. 3 Hill, 479.

not a bar to a second People v. Townsend,

Where a prisoner has been put on trial, a juror cannot be withdrawn without his consent. People v. Barrett, 2 Cai. 304; Grant v. People, 4 Park. 527; Klock v. People, 2 id. 676.

In case of disagreement the jury may be discharged and the prisoner retried. People v. Goodwin, 18 Johns. 187; Jones v. Com., 14 Va. L. J. 197; 10 S. E. Rep. 1004.

So where they separate without authority and are afterward discharged. People v. Reagle, 60 Barb. 527.

In cases of misdemeanor the court of sessions may discharge the jury without consent of the prisoner, and he may be tried again. 2 Johns. Cas. 275. An arrest of judgment after conviction for felony is not a bar to a second indictment. People v. Casborus, 13 Johns. 351.

A conviction fraudulently obtained by defendant is not a bar to a subsequent prosecution for the same offense. McFarland v. State, 68 Wis. 400; 60 Am. Rep. 867; State v. Simpson, 28 Minn. 66; 41 Am. Rep. 269.

A person may be tried on a second indictment after a nolle pros. or supersedeas of the first, to which the plea of jurisdiction only had been overruled. Gardiner v. People, 6 Park. 155, 190.

A prisoner sentenced upon a regular trial and conviction cannot be retried, Shepherd v. People, 25 N. Y. 406; but the judgment may be corrected under the act of 1863. Hussy v. People, 47 Barb. 503.

Where one is convicted of murder and the law is subsequently repealed without reservation and a new law enacted, he cannot be tried again, nor can he be executed under a re-enactment of the old law. Hartung v. People, 26 N. Y. 167.

The defense of former acquittal must be pleaded, and in the absence of a plea setting it up, the question cannot be raised. Code Crim. Proc., § 332, 339; People v. Cignarale, 110 N. Y. 29; People v. Benjamin, 2 Park. 201. See, also, 4 L. R. A. 542, note; Rapalje Crim. Proc., § 140.

To sustain the plea of former acquittal it must appear that the party was "put in jeopardy" by the former trial. Canter v. People, 5 Abb. Pr. (N. S.) 27; 1 Abb. Dec. 305; People v. Warren, 1 Park. 338.

Where an indictment contains three counts, and the jury find a verdict of guilty on the first count, and omit to find either way as to the remaining counts, it is equivalent to an acquittal on those counts, and is as to them a bar

to further prosecution. People v. Seeley, 3 N. Y. Cr. Rep. 225; People v. Dow ling, 84 N. Y. 478; Guenther v. People, 24 id. 100.

To same effect, Whart. Crim. Pl. & Pr., § 740; Bell v. State, 48 Ala. 684; 17 Am. Rep. 40; Edgerton v. Com., 5 Allen, 514; Stuart v. Com., 28 Gratt. 950. Where a party seeks and obtains a new trial for error, he thereby waives his constitutional protection and can be again tried for the offense of which he was formerly convicted. People v. Cignarale, 110 N. Y. 30, 31; People v. Keefer, 65 Cal. 232; Bohanan v. State, 18 Neb. 57; 53 Am. Rep. 791; Shular v. State, 105 Ind. 289; 55 Am. Rep. 217.

In People v. Palmer, 109 N. Y. 419, the court say: "The effect of the defendant's appeal is merely to continue the trial under the indictment in the appellate court, and if reversal of the judgment of conviction follows, that judgment, as well as the record of the former trial, have been annulled and expunged by the judgment of the appellate court, and they are as though they never had been; while the indictment is left to stand as to the crime of which the prisoner had been charged and convicted as though there had been no trial. Only where the result of the former trial was in effect an acquittal of another crime charged in the indictment, may he plead that result in bar of further prosecution for that crime. If the defendant takes an appeal from the judgment of conviction, he must be deemed to ask for a correction of errors made upon his trial, and to waive his constitutional protection. Of necessity he must be deemed to ask for a new trial. By taking the appeal to the supreme court power is conferred upon that court to continue and review the prisoner's trial, and upon a reversal to pronounce such judgment as it deems just within the terms of the statute. It may affirm the proceedings below, or reverse, and either order a new trial or discharge the prisoner. That no constitutional right of the party is invaded must be a self-evident proposition, or it is a privilege which is granted, of which he may, but not must, avail himself. I think that the sounder doctrine which recognizes a distinction between jeopardy incurred with the consent of the prisoner and jeopardy incurred without that consent."

A statute which provides that "the granting of a new trial places the parties in the same position as if no trial had been had," is not unconstitutional. Com. V. Arnold, 83 Ky. 1; 4 Am. St. Rep. 114. In that case it was held that the granting of a new trial to one convicted of manslaughter upon an indictment for murder, was not a bar to another trial under the same indictment, for the higher offense. See exhaustive note to this case, collating the authorities. A statute providing that a person shall be subjected to an increased punishment upon conviction for a second offense is not in violation of a constitutional provision that no person shall be twice put in jeopardy for the same offense. People v. Stanley, 47 Cal. 113; 17 Am. Rep. 401; Chenowith v. Com. (Ky.), 12 Crim. Law Mag. 234.

10. No person to be a witness against himself in a criminal action or to be unnecessarily restrained. No person can be compelled in a criminal action to be a witness against himself, nor can a person charged with crime be subjected, before