The theory that eccentricities of character and inordinate passion can render a sane man incapable of committing an offense which involves deliberation, is wholly untenable. Id.

Irresistible impulse.-The doctrine of irresponsibility for a crime committed by a person who had sufficient mental capacity to comprehend the nature and quality of his act, and to know that it was wrong, on the ground that he had no power to control his actions, has not met with favor in the adjudications in this state. Walker v. People, 88 N. Y., 86; 1 N. Y. Cr., 24.

That the accused pretends that he is impelled by an irresistible and overwhelming impu se to commit the act, is no defense. People v. Waltz, 50 How., 214

Propensity to drink.-Effect of a morbid propensity to drink as a defense on the trial of an indictment for murder. People v. Otto, 38 Hun, 99; 4 N. Y. Cr., 154.

Passion. The accused is responsible even though some controlling disease was, in truth, the acting power within him, which he could not resist, or if he had not a sufficient use of his reason to control the passion which prompted the act. People v. Carpenter, 1 St. Rep.,648; 102 N. Y., 250; 4 N. Y. Cr., 187; People v. Walworth, 4 id., 395; Willis v. People, 32 N. Y., 717.

Spirits.-Belief of spirits, in itself is no defense, provided the judgment and reason declared to the consciousness of the accused that the act was wrong. People v. Waltz, 50 How, 214.

§ 24. Rule as to married woman.-It is not a defense, to a married woman charged with crime, that the alleged criminal act was committed by her in the presence of her husband.

Coercion. In Seiler v. People, 77 N. Y., 413, and Goldstein v. People, 82 id., 233; 10 W. Dig., 506, it was held that coverture was no protection where the wife is shown to have taken an active and willing part in the criminal act. or where she is the inciter of it. It was also held that the fact of the husband's presence was but prima facie evidence of coercion, which, like other presumptions, may be rebutted and overcome by proof. See People v. Ryland, 28 Hun, 572; 1 N. Y. Cr., 123; 16 W. Dig., 232. But this section has removed the burden from the People of overcoming any presumption in favor of married women who participate with their husbands in the commission of crime.

Whatever of a criminal nature the wife does in the presence of the husband, is presumed to be compelled by him. People v. Ryland, 97 N. Y., 126; 2 N. Y. Cr.. 442. This presumption is prima facie, and not conclusive. Id. If it appears that she was not urged or drawn to the offense by him, but was an inciter of it, she is liable as well as he. Id. This section extinguishes the presumptive defense of duress in favor of married women.

$25. Rule as to persons under threats, etc.-Where a crime is committed or participated in by two or more persons, and is committed, aided, or participated in by any one of them, only because, during the time of its commission, he is compelled to do, or to aid or participate in the act, by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant death or grievous bodily harm, in case he refuses, the threats and apprehension constitute duress, and excuse him.

$26. Rule, when act is done in defense of self or another. -An act, otherwise criminal, is justifiable when it is done to protect the person committing it. or another whom he is bound to protect, from inevitable and irreparable personal injury, and the

injury could only be prevented by the act, nothing more being done than is necessary to prevent the injury.

See sections 203, 204, 205 and 223, post; sections 79, 80 and 81 of Code of Criminal Procedure.

See note upon self-defense in People v. Lyons, 6 N. Y. Cr., 119.

Personal property-Defense of personal property. Gyre v. Culver, 47 Barb., 592; Morgan v. Durfee, 21 Alb. L. J., 215.

The owner of personal property is liable to an indictment for using force to prevent an officer from levying upon such property by virtue of an execution against another person, where the officer acts, not wantonly, carelessly or oppressively, but in good faith, believing the property to be that of the judgment debtor. People v. Hall, 2 N. Y. Cr., 137; 18 W. Dig., 357.

Real property.-Defense of possession of real property. Corey v. People, 45 Barb., 262; Woods v. Phillips, 43 N. Y., 152; People v. Gulick, Lalor's Supp., 229; Harrington v. People, 6 Barb., 607.

Felony.-Resistance to prevent felony. People v. Hand, 4 Alb. L. J., Ruloff. People, 45 N. Y., 213.

91;

One who is opposing and endeavoring to prevent the consummation of a felony by others may properly use all necessary force for that purpose, and resist all attempts to inflict bodily injury upon himself, and may lawfully detain the felons and hand them over to the officers of the law. Ruloff v. People, ante.

Burden. The burden is upon the accused, after it is established that he shot the complainant, to show to the satisfaction of the jury the existence of sufficient cause to justify him in the use of the deadly weapon. Sawyer v. People, 1 N. Y. Cr., 249; 16 W. Dig., 394.

Application to authorities.-A person assaulted and beaten should, if he has opportunity to do so, apply to the proper authorities for redress and protection. People v. Lyons, 6 N. Y. Cr., 118.

He cannot take the law into his own hands, arm himself, and go to the place where he expects to meet his former assailant and inflict bodily injury upon him. Id. And if, while intent upon such purpose, he meets such assailant, and, before he is ready to fire the shot, and while the intent still exists, he accidentally discharges his pistol and kills his enemy, the homicide is not excusable. Id.

A person need not first invoke protection against anticipated assault. Evers . People, 3 Hun, 716; 63 N. Y., 625.

Provocation. Where a person is himself the cause of an assault made upon him, and has intentionally provoked it, he cannot afterwards excuse himself for inflicting needless violence upon the person of such party. People v. McGrath, 13 St. Rep.,359; 47 Hun, 326. To justify a person in beating another, the beating must appear to be necessary for his own defense and protection. Id. Homicide. In order to justify resistance, the party assailed must avoid attack if possible. People v. Sullivan, 7 N. Y., 396; People v. Cole, 4 Park., 35; People v. Harper, Edm. S. C., 180, Shorter v. People, 2 N. Y., 193.

If one is attacked with a dangerous weapon, it is incumbent upon him to avoid the assault by retreat, if retreat is open to him; but if he cannot by so doing avoid the attack, he has a right to defend himself; and, if in such defense he kills the attacking party, the law will justify him. People v. Minisci, 12 St. Rep., 727.

A person if attacked, and justified in reasonably apprehending great_bodily harm, and the danger is imminent, may kill his assailant. Shorter v. People, 2 N. Y., 193; Patterson v. People, 46 Barb., 625. See People v. Lamb, 54 id., 342; People v. Austin, 1 Park., 154; People v. Cole, 4 id., 35; Pfomer v. People, id., 558; Uhl v. People, 5 id., 410.

$27. Exemption of public ministers.-Ambassadors and other public ministers from foreign governments, accredited to the president or government of the United States, and recognized 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 punishment.

Section 2, Art. 3 of Federal Constitution.

TITLE IL

OF PARTIES TO CRIME.

SECTION 28. Principal and accessory. 29. Definition of principal.

30. Definition of accessory.

31. All principals in misdemeanors.
32. Punishment of accessories.

33. Punishment of accessories.

§ 28. Principal and accessory.-A party to a crime is, either.

1. A principal; or,

2. An accessory.

Parties to the commission of a crime are either principals or accessories, as classified or defined by this and the following two sections. People v. Sunborn, 14 St. Rep., 125.

§ 29. Definition of principal. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.

The case of People Fitzgerald, 6 St. Rep., 599; 43 Hun, 35, was reversed in 6 St. Rep., 328; 105 N. Y., 146; 5 N. Y. Cr., 335.

The case of People v. Sharp, 10St. Rep., 522; 45 Hun, 502, was reversed in 12 St. Rep., 217; 107 N. Y, 427.

Principal-This definition embraces and defines the offense heretofore known as being an accessory before the fact, and makes a person who is guilty of that crime principal to the felony. People v. Sanborn, 14 St. Rep., 126. The effect of the provisions of this section is to abolish the offense of being an accessory before the fact as defined by the common law. Id.

The case of an accessory before the fact has now, by means of this section, been made the case of a principal, and he occupies the same position in the case of felony as such an individual heretofore occupied in cases of treason and misdemeanor. People v. Bliven, 112 N. Y., 83; 20 St. Rep., 487; 14 id., 495.

Prior to the Code, a person, who merely counselled and abetted another in a scheme to commit a crime, was not deemed a principal, and could not be convicted under an indictment charging him as such. People v. Kief, 58 Hun, 344; 34 St. Rep., 528; 11 N. Y. Supp., 927. Now, under the Code, an issue as to the real principal's guilt may arise under an indictment charging the abetter, or both, as principals. Id.

Before the enactment of this section, where a party was indicted as accessory before the fact to a felony, for which another had been indicted as principal, the trial and conviction of the principal were essential to the prosecution of the charge against the accessory. People v. Kief, 126 N. Y., 663; 4 Sil. (Ct. App.), 450; 37 St. Rep., 479. But, with the change effected by this section, the distinction between principal and accessory disappeared, and, thenceforward, he who aids, abets or counsels in the commission of a crime becomes

equally guilty with him who commits it, and can be indicted, tried and convicted as a principal. Id.

This section includes in the term "principal," one who, though absent at the time, counsels the commission. People v. Bliven, 112 N. Y., 91; 20 St. Rep., 487; 14 id., 495.

A person who, though not present when the act was committed, had advised, commanded or procured the doing of the act, may be indicted and convicted of the same crime with the person who in fact committed the act. People v. Cotto, 131 N. Y., 597; 42 St. Rep., 715; 4 Sil. (Ct. App ), 10.

Person confederating and present with another, while the latter commits a felony, is a principal. People v. McElroy, 37 St. Rep., 650.

Persons, who knowingly promote and participate in carrying out a criminal scheme, are all principals. Leonard v. Poole, 23 St. Rep.,753; 114 N. Y.,378. One who counsels another to commit a crime is a principal People v. Phelps, 61 Hun, 115; 39 St. Rep., 599; 15 N. Y. Supp., 492. But where the crime is not committed, such person is not a principal, whatever counsel he may have given. Id.

Instances -All who procure the commission of felonies, whether present or absent, are principals. People v. Bliven, 14 St. Rep., 496; 6 N. Y. Cr., 368.

A person, who induces another to commit the crime of burglary in the third degree, is a principal. People v. Bosworth, 64 Hun, 74; 45 St. Rep., 517; 19 N. Y. Supp.. 115.

A person, who procures the forged indorsement of a promissory note to be written, being present at the time, aiding and abetting the forgery, is properly charged as a principal. People v. Tower. 48 St. Rep., 438; 135 N. Y., 459.

Where the participation of the defendant in the crime of la ceny has been confined to the fact of counselling and inducing its commission, he is a principal in the crime. People v. Wiley, 48 St. Rep., 500; 20 N. Y. Supp.,

446.

The person who employs another to commit a larceny and the employe are principals in the commission of the crime. People v. Brien, 53 Hun, 498; 25 St. Rep., 229; 7 N. Y. Cr., 171; 6 N. Y. Supp., 199.

Persons aiding and assisting another in committing the crime of rape are liable as principals. People v. Batterson, 50 Hun, 45; 5 N. Y. Cr., 176; 2 N. Y. Supp., 377; 18 St. Rep., 845.

Bar. The acquittal of one of several persons indicted for forgery is no legal interruption to the convi tion of another of them. People v. Bassford, 21 W. Dig., 349; 3 N. Y. Cr., 223.

See People v. Fitzgerald, 5 N. Y. Cr., 343; 6 St. Rep., 599.

§ 30. Definition of accessory.-A person who, after the commission of a felony, harbors, conceals or aids the offender, with intent that he may avoid or escape from arrest, trial, conviction or punishment, having knowledge or reasonable ground to believe that such offender is liable to arrest, has been arrested, is indicted er convicted, or has committed a felony, is an accessory to the felony.

Accessory after fact.-The offense of being an accessory to a felony, after the fact is preserved by the Penal Code and is defined in this section. People t. Sanborn, 14 St. Rep., 127.

To constitute the offense, one must help the principal to elude or evade the capture. People v. Dunn, 53 Hun, 381; 7 N. Y. Cr., 186; 25 St. Rep., 460; 6 N. Y. Supp., 805. Failing to prosecute or preventing the attendance of witnesses, does not render one an accessory after the fact. Id. Nor does any participation in negotiating a compromise have such effect. Id.

§ 31. All principals in misdemeanors. A person who commits or participates in an act which would make him an acces

sory if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor. See section 682, post.

The case of People v. Lyon, 33 Hun, 623; 2 N. Y. Cr., 515, was reversed in 99 N. Y., 210.

No accessories.-It is an elementary principle that in misdemeanors there can be no accessories. People v. Clark, 8 N. Y. Cr., 197; 14 N. Y. Supp., 648, 655. This principle was incorporated into this section. Id.

There are no accessories in cases of misdemeanors. People v. Lyon, 99 N. Y., 210; 3 N. Y. Cr., 163.

Accessories, if the crime is a misdemeanor, may be indicted and punished as principals. People v. Clark, ante.

§ 32. Punishment of accessories. An accessory to a felony may be indicted, tried, and convicted, either in the county where he became an accessory, or in the county where the principal felony was committed, and whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction.

See section 126, post.

The court intimated in People v. O'Connell, 60 Hun, 111; 38 St. Rep., 108, that a man cannot legally be indicted and tried as accessory to a felony until the principal be convicted. This dictum is opposed to the plain language of this section.

What evidence sufficient to justify a conviction as a principal, not simply as an accessory before the fact. People v. Ryland, 97 N. Y., 126. See People v. Bassford, 21 W. Dig., 349; 3 N. Y. Cr., 223.

§ 33. Punishment of accessory.-Except in a case where a different punishment is specially prescribed by law, a person convicted as an accessory to a felony is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both.

The reference to this section in People ex rel. Kopp v. Com'rs, etc., 2 St. Rep., 533; 102 N. Y., 587; 4 N. Y. Cr., 447, should be to section 3, ante.

TITLE III

DEGREES IN THE COMMISSION OF CRIMES AND ATTEMPTS TO COMMIT CRIMES.

SECTION 34. What is an attempt to commit a crime.

35. Prisoner indicted may be convicted of lesser crime, or attempt. 36. Acquittal or conviction bars indictment for another degree, or attempt.

§ 34. What is an attempt to commit a crime.-An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.

See section 685, post.

The case of People v. Moran, 54 Hun, 282; 27 St. Rep., 23; 7 N. Y. Co., 333; 7 N. Y. Supp., 584, was reversed in 123 N. Y., 254; 8 N. Y. Cr., 106; 33 St. Rep.. 397.

What is an attempt.-Under the assumption that an attempt cannot be predicated of any act tending to the perpetration of a crime, unless the condi