The doing of any prohibited act, a punishment for which is not otherwise provided, is a misdemeanor. People v. Bogart, 3 Abb. 193.

The case of People v. Hovey, 5 Barb. 117, which held that if a husband or wife, divorced on account of his or her adultery, marries again during the life of the innocent party, was guilty of a misdemeanor, was overruled in People v. Faber, 92 N. Y. 149; 44 Am. Rep. 357.

7. Objects of the Penal Code.-This Code specifies the classes of persons who are deemed capable of crimes, and liable to punishment therefor; defines the nature of the various crimes; and prescribes the kind and measure of punishment to be inflicted for each.

See Matter of Hallenbeck, 65 How. Pr. 401; People v. McTameney, 13 Abb. N. C. 56; 30 Hun, 505; 1 N. Y. Cr. Rep. 437; 66 How. Pr. 75.

§ 8. Procedure.-The manner of prosecuting and convicting criminals is regulated by the Code of Criminal Procedure. Code Crim. Proc., § 4; People v. Beckwith, 108 N. Y. 73.

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

See State Const., art. 1, § 1; Code Crim. Proc., § 3.

Conviction is that legal proceeding of record which ascertains the guilt of the party. Bouv. Dict.

The ordinary meaning of the word "conviction" is a finding by the jury of a verdict of guilty. Matter of Browne, 7 Crim. L. Mag. 328; Com. v. Lockwood, 109 Mass. 323; 12 Am. Rep. 699.

The record of conviction must be before the court to warrant pronouncing judgment. McNeill's Case, 1 Caines Rep. 72.

Whether a party accused of a crime be guilty or innocent cannot be determined in an equity action. Davis v. American, etc., Society, 75 N. Y. 362.

A verdict of guilty is not alone sufficient to constitute a conviction, it must, be followed by judgment and sentence. Blaufus v. People, 69 N. Y. 107; 25 Am. Rep. 148. See, also, Whart. Ev. (3d ed.), § 567: Marion v. State, 16 Neb.

349.

Defendant was convicted in 1881, in a court of oyer and terminer held by a supreme court justice and two justices of the sessions. Before sentence, defendant sued out a certiorari to review the conviction; the conviction was affirmed, and in 1883, at a court of oyer and terminer held by the same persons as was the trial court, defendant was sentenced. Held, that the court was illegally constituted and the sentence void. People v. Bork, 96 N. Y. 188.

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

See post, § 35, note.

This section must be construed with, and is qualified and restricted by the provisions of sections 436 and 437 of the Code of Criminal Procedure. People v. Rugg, 98 N. Y. 537; 3 N. Y. Cr. Rep. 172.

The finding of the degree of the crime is only essential where the jury find the defendant guilty of a degree other than that charged in the indictment. People v. Rugg, 98 N. Y. 537; 3 N. Y. Cr. Rep. 172.

The verdict may be general or special.

Code Crim. Proc., §§ 436-438. Need be in no particular form. Code Crim. Proc., § 440.

May be of a degree inferior to charge or of an attempt. Code Crim. Proc., § 444: Penal Code, § 35; McNevins v. People, 61 Barb. 307.

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

See 2 Crim. Law Mag. 1; People v. Whedon, 2 N. Y. Cr. Rep. 318; Cowley v. People, 83 N. Y. 468; Matter of Gutierrez, 45 Cal. 431; People v. Soto, 49 id. 68; People v. West, id. 610; People v. Tisdale, 57 id. 104; People v. Bauer, 37 Hun, 408; Beebe v. Supervisors, 64 id. 380.

Criminal laws are not to be extended by construction. Thomas v. Mut. Protective Union, 49 Hun, 82; Lamb v. State, 67 Md. 524; 10 Crim. Law Mag. 95.

In all free countries the criminal law ought to be plain, perspicuous and easily apprehended by the common intelligence of the community. It is the essence of cruelty and injustice to punish men for acts which can be construed to be crimes only by the application of artificial principles according to a mode of disquisition unknown in the ordinary business and pursuits of life. Lamb v. State, 67 Md. 524; 10 Crim. Law Mag. 95.

Laws which create crimes ought to be so explicit either in themselves, or by reference to some other standard, that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Sharp, Peters C. C. 118.

§ 12. Of sections declaring crimes punishable.-The sev eral sections of this Code, which declare certain crimes to be pun. ishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed; but such court may in its discretion suspend sentence, during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not

exceed ten years

of a felony.

and such

person has never before been convicted

In effect, as amended, April 4, 1893; Laws 1893, ch. 279.

The provisions for appointing a time for pronouncing judgment and what causes may be shown against it are regulated by Code Crim. Proc., § 471 et seq. Punishment for second offenses, §§ 688, 689, post.

The power to suspend sentence after conviction is inherent in every court of record having criminal jurisdiction. People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 293, collating the authorities.

See, also, People v. Archer, 18 Chi. L. News, 245; People v. Mueller. 4 Crim L. Mag. 725; Miller's Case, 9 Cow. 370.

But if the rights or status of the prisoner are changed after the suspension of the sentence, as if the prisoner is under sixteen years of age and may be sentenced to the house of refuge, which does not disfranchise him — after passing that age, he cannot be sentenced under the conviction had before attaining that age. People v. Harrington, 15 Abb. N. C. 161; 3 N. Y. Cr. Rep. 141; 1 How. Pr. (N. S.) 37.

The fact that the pardoning power is lodged in the executive does not affect the power of the judiciary to suspend sentence. People v. Mueller, 4 Crim, L. Mag. 725; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 293.

Where a prisoner has been convicted and sentenced, and duly committed in pursuance of the sentence, the power of the court to revise or change the sen. tence is at an end. Brown v. Rice, 57 Me. 55; 2 Am. Rep. 11.

In People v. Mersevey (76 Mich. 223) defendants pleaded guilty to a charge of burglary, and were sentenced each to five years in the state's prison, from and including the day of sentence. Later, on the same day, they attempted to break jail, and the following day they were brought into court, the original sentence set aside, and they were re-sentenced, one for nine and the other for ten years. Held, that the first sentence went into effect the day it was pronounced, and that the second sentence was a nullity.

13. Punishments, how determined.-Whenever in this Code, the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by this Code. In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable with imprisonment, as for a felony, such corporation is punishable by a fine of not more than five thousand dollars. [In effect as amended Apr. 25, 1892.

If a statute fixes punishment at imprisonment for one year, sentence may be for any time not exceeding one year. People v. Bauer, 3 N. Y. Cr. Rep. 433; 37 Hun, 407.

Judgment and sentence must specify place of imprisonment, § 705, post.

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

§ 15. Punishment of misdemeanors when not fixed by statute. A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both. This section not applicable to crime of keeping a bawdy house, committed before Penal Code took effect. People v. Sadler, 3 N. Y. Cr. Rep. 474.

Upon conviction in courts of special sessions for misdemeanors the punishment is limited to a fine not exceeding fifty dollars or imprisonment not exceeding six months or both. Code Crim. Proc., § 717; People v. Riseley, 38 Hun, 280; People v. Carter, 48 id. 165.

One convicted of petit larceny is subject to punishment prescribed by this section. Matter of Hallenbeck, 65 How. 501; People v. McTameney, 30 Hun, 505; 13 Abb. N. C. 56; 1 N. Y. Cr. Rep. 437; 66 How. Pr. 75.

So one who obtains possession of land by means of a criminal fraud. Loos v. Wilkinson, 51 Hun, 85.

Selling spirituous liquors illegally is punishable under this section. Foote v. People, 56 N. Y. 321.

In People v. Palmer, 43 Hun, 408; 5 N. Y. Cr. Rep. 107, although the point was not determined, Bockes, J., was of opinion that the punishment for assault in the third degree was "specially prescribed " by section 717, Code of Criminal Procedure. See Burns v. Norton, 37 State Rep'r, 418.

Relator was convicted of assault in the third degree and sentenced to imprisonment in state prison for one year. Held, that the offense was punishable only by fine or imprisonment in a penitentiary or county jail; that as the court of sessions exceeded its jurisdiction, its judgment could not be enforced, but the conviction being valid, relator was not entitled to a discharge on habeas corpus, but should be remanded to the custody of the sheriff, to be dealt with according to law. People, ex rel., v. Kelly, 97 N. Y. 212; 2 N. Y. Cr. Rep. 437.

TITLE I.

PERSONS PUNISHABLE FOR CRIME.

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

18. Presumption of responsibility as to child under seven years.

19. Presumpton of responsibility as to child of seven years or more. 20, 21. Irresponsibility, etc., of idiot, lunatic, etc.

22. Intoxicated persons.

23. Morbid criminal propensity.

24. Rule as to married woman.

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

26. Rule as to persons acting under threats, when act done in defense of self or another.

27. Exemption of public ministers.

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

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

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

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

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

5. A person who, being out of this state and with intent to cause within it a result contrary to the laws of this state, does an