The provisions of section 9 of 3 R. S. (7th_Ed.), 1962, are not inconsistent with sections 336 and 340, ante, and are not repealed by this and the following section. Rockwood v. Oakfield, 2 St. Rep., 335.

See People Rontey, 21 St. Rep., 175; 6 N. Y. Cr., 249; 4 N. Y. Supp., 235; aff'd, 117 N. Y., 624, without written opinion; Matter of McMahon, 1 N. Y. Cr., 63; 64 How., 285; People v. Bernardo, 1 N. Y. Cr., 248.

§ 726. General repeal.-All acts and parts of acts which are inconsistent with the provisions of this act are repealed, so far as they impose any punishment for crime, except as herein provided.

See notes under preceding section.

Express. This section contains the only express repealing provision in the Code. People v. Jaehne, 3 st. Rep., 11; 103 N. Y., 198; 4 N. Y. Cr.,

478.

Substitute.-The enactments of the Code are intended as substitutes for those which previously existed. People v. Hollenbeck, 1 N. Y. Cr., 437, note; 65 How., 401.

What acts repealed.-This section repeals all acts, and parts of acts, which are inconsistent with the provisions of this Code. Matter of McMahon, 1 N. Y. Cr., 64; 64 How., 285.

It is only such acts and parts of acts as were inconsistent with the provisions of this Cde that this section declares shall be repealed. Matter of Riley, 31 Hun, 613.

It is the obvious meaning of this section that punishments imposed by previous acts are to be repealed whenever they are inconsistent with the Code. People v. Hollenbeck, 1 N. Y. Cr., 437, note: 65 How., 401; People v. McTameny, 1 N. Y. Cr., 442; 3 Hun, 505; 13 Abb. N. C., 56; 66 How., 70. Act of 1862.-Section 3, chap. 374 of 1862, creating and defining the offense of an assault with intent to steal, has not been repealed by this Code. People v. Bernardo. 1 N. Y. Cr.. 247.

Act of 1872.-Chap. 150 of 1872, authorizing the common council of the city of Kingston to suppress disorderly houses, was repealed by the Penal Code. People v. Hatter, 22 N. Y. Supp., 688.

See People v. Rontey, 21 St. Rep., 175; 6 N. Y. Cr., 249; 4 N. Y. Supp., 235; aff'd, 117 N. Y., 624; without written opinion; People ex rel. McDonald v. Keeler, 99 N. Y., 474; 3 N. Y. Cr., 354; Rockwood v. Oakfield, 2 St. Rep., 335.

§ 727. When act to take effect.-This act shall take effect on the first day of December, eighteen hundred and eighty-two. When construed in connection with other statutes, it must be deemed to have been enacted on the fourth day of January, eighteen hundred and eighty-one, so that any statute enacted after that day is to have the same effect as if it had been enacted after this Code.

Am' by chap. 102 of 1882.

This amendment was made before the Code went into operation, and postponed the time of its taking effect to December 1, 1882.

The Penal Code, by its own direction, is to be deemed to have been enacted on the 4th of January, 1881, to take effect on the 1st of May, 1882. People ex rel Van Heck v. Catholic Protectory, 38 Hun, 135. This decision was made before the amendment of 1882.

Construction.-This Code, when construed in connection with other statutes, must be deemed to have been enacted on the 4th day of January, 1881. People ex rel. Knowlton v. Sadler, 2 N. Y. Cr., 440.

See People v. Beckwith, 12 St. Rep., 795; 108 N. Y., 72; 7 N. Y. Cr., 162; People ex rel. Laughlin v. Finn, 26 Hun, 59.

322

PENAL CODE OF THE STATE OF NEW York.

728. Proviso as to amendatory and repealing statutes. -No provision of this Code, or any part thereof, shall be deemed repealed, altered or amended by the passage of any subsequent statute inconsistent therewith, unless such statute shall explicitly refer thereto and directly repeal, alter or amend the Code accordingly.

This section was added by chap. 31 of 1886.

See sections 31 to 34, inclusive, of chap. 677 of 1892.

Chap. 33 of 1888 did not directly repeal, alter or amend the Penal Code. People v. Hatter, 22 N. Y. Supp., 690.

APPENDIX

ΤΟ

SILVERNAIL'S PENAL CODE.

Annotations of decisions, reported for the year ending June 1, 1894, relating to the provisions of the Penal Code.

SECTION 3.-Consent.-That no injury is done to the willing is a maxim of the criminal, as well as of the civil, law, if the one who consents is capable of consenting, and consents uninfluenced by fear, force or fraud. People v. Gardiner, 57 St. Rep. 18; 73 Hun, 66; 25 N. Y. Supp. 1072. This rule is applicable, however, only to the alienable rights of the person consenting. Id. The consent of a person that another might take his life would be no justification of a homicide. Id.

Whether certain acts are, or are not, criminal, depends entirely on the fact whether the person, on or against whom they are perpetrated, consents to, and participates in, those acts. Id. Such acts do not constitute a crime in case the assent of the person, against whom they are committed, is freely given. Id.

Motive. Crime is never committed without a motive. People v. Dailey, 57 St. Rep. 10; 73 Hun, 16; 25 St. Rep. 1050. On the trial of a person charged with crime, it is always competent to give evidence showing the motive which induced the criminal act. Id. Where the crime is clearly proved, and the criminal positively identified, it is not important to prove motives. Id. But, where the case depends upon circumstantial evidence, and the circumstances point to any particular person as the criminal, the case is much fortified by proof that he had a motive to commit the crime. Id. Where the motive appears, the probabilities created by the other evidence are much strengthened. Id.

Ingredient. When a particular state of mind is a necessary ingredient of an offense, that offense cannot be committed unless the state of mind prescribed by the statute is shown to exist. People v. Gardiner, ante.

Crime and Punishment, Several.-At common law, every crime, so far as respects the guilt and punishment of the parties

engaged in its perpetration, is several. People v. Girard, 56 St. Rep. 47; 73 Hun, 457; 26 N. Y. Supp. 272; Palmer v. Conley, 4 Denio, 378. If two or more persons concur in the commission of an offense, each offender is liable to a several punishment. Id. This principle extends to statute offenses as well as to those which are punishable by the common law. Id. In general, there is no distinction in the application of it between the higher kinds of punishment and fines or mere pecuniary penalties. Id.

Subsequent enactment.-Even though there may be already a section or sections of the Penal Code which cover a subject, that does not render the further enactment of the legislature upon the same subject void. People v. Cannon; People v. Quinn; People v. Bartholf, 54 St. Rep. 431; 139 N. Y. 32; aff'g 43 St. Rep. 427, and rev'g 44 Id. 920 and 49 Id. 368.

7. Object. The object of this Code was to promote substantial justice in securing to the accused a fair trial upon an intelligible accusation, and in preventing the escape of a guilty person through technicalities, which are without merit, with respect to the procedure preliminary to or upon the trial. People v. Adler, 55 St. Rep. 669; 140 N. Y. 331; aff'g 53 St. Rep. 936.

§ 11. Construction. The construction of this Code should be strict, to preserve the substantial interest of the accused; but it should be liberal, where the interests of justice require it, and no vested rights of the accused are affected. People v. Adler, 55 St. Rep. 669; 140 N. Y. 331; aff'g 53 St. Rep. 936.

The power to suspend in all courts of superior People ex rel. Forsyth v.

§ 12. Suspension of Sentence. sentence after conviction was inherent criminal jurisdiction at common law. Court of Sessions, 57 St. Rep. 404; 141 N. Y. 288; rev'g 50 St. Rep. 234.

The power to suspend sentence was always a part of the judicial power. Id. The suspension of sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities, remain and become operative when judgment is rendered. Id.

This section did not, before the amendment of 1893, deprive the court in all cases of any discretion with respect to the imposition of the punishment prescribed by law. Id.

The provision of this section, even prior to the amendment of 1893, was not intended to, and did not, abrogate any power over the judgment which the courts possessed before. Id. It is declaratory of the law as it always existed. Id. It was always the duty of the court to impose the punishment upon conviction. Id. This duty was never supposed to be inconsistent with the power to suspend the judgment till the next term of the court or indefinitely. Id.

The amendment of 1893 does not encroach upon the power of the governor to grant reprieves and pardons. Id.

Since the amendment of 1893, the court may suspend sentence as before, but it can do nothing to preclude itself, or its successors, from passing the proper sentence whenever such a course appears to be advisable. Id.

The authority to grant reprieves and pardons never was intended to abrogate or, in any degree, restrict the exercise of the power in regard to its own judgments that criminal courts had so long

maintained. Id.

The legislature cannot authorize the courts to abdicate their own powers and duties or to tie their own hands in such a way that, after sentence has been suspended, they cannot, when deemed proper and in the interest of justice, inflict the proper punishment in the exercise of a sound discretion. Id.

§ 15. Prohibition. The manufacture of brushes in the Albany penitentiary was prohibited by chap. 237 of 1894. But all contracts in relation thereto, made prior to the passage of the above act, were exempted from its operation.

Highway labor.-Chap. 266 of 1894 provides for the employment of state prison convicts upon the public highway, and repeals chap. 312 of 1893.

§ 21. Insanity. The heat of passion and feeling, produced by motives of anger, hatred or revenge, is not insanity. People v. Foy, 53 St. Rep. 268; 138 N. Y. 667. The law holds the doer of the act, under such conditions, responsible for the crime. Id.

§ 34. What does not amount to. It is a general rule, having few, if any, exceptions, that unless the completed act, accomplished as intended and attempted, will constitute a crime, no step or steps taken to perpetrate the act, will amount to a criminal attempt. People v. Gardiner, 57 St. Rep. 18; 73 Hun, 66; 25 N. Y. Supp. 1072.

At common law, if a person, intending to steal an article, takes it with the owner's consent, it is not larceny. Id; Thorne v. Turek, 94 N. Y. 90-95. In such a case, as the completed act, accomplished as intended, is not a crime, none of the steps taken as ingredients of the offense, will constitute a crime, and the taker cannot be convicted of an attempt to commit the crime of larceny. People v. Gardiner, ante.

In People v. Moran, 33 St. Rep. 397; 123 N. Y. 254, the defendant committed a trespass on a person with intent to steal, and, if he had accomplished the act which he attempted and intended, the crime of larceny would have been committed.

A boy so young, that he is deemed incapable of perpetrating a