REPORT.

TO THE LEGISLATURE OF THE STATE OF NEW-YORK:

The Commissioners on Practice and Pleadings, in further performance of the duties devolved upon them by the Constitution, and by the act under which they were appointed, have the honor to submit herewith to the Legislature the draft of an act to establish a Code of Criminal Procedure.

The Commissioners have been for several months engaged in the consideration of the important subjects embraced in the accompanying code, and have weighed with great caution every view which has suggested itself to their minds, as well in respect to the principles upon which they should proceed, as to the details, even the minutest, by which those principles could be successfully carried into practice. There is no branch of judicial procedure, which, by the common concession of the people of this state, demands at the hands of the Legislature, a more searching and thorough examination, or a more complete and effectual reform, than the principles and details of criminal practice. Depending, as society does, for its safety, on the one hand upon the most rigorous enforcement of the law for the prevention and punishment of crime, and on the other, for a just protection to the life and liberty of the citizen, it will readily be perceived, that the task of adjusting the legislation of the state so as to effectuate the one object without undue prejudice to the other, is one of no easy accomplish

ment. It will therefore not be attributed to a false profession of diffidence on the part of the Commissioners to say, that while they have approached the performance of this duty, with a determination, so far as they were able, to attain both these objects, they have at the same time realized the delicacy and difficulty of the work. In submitting it to the Legislature, they do so with at least this confidence, that, in their judgment, every consideration of public policy is in harmony with the principles upon which they have proceeded.

The design of the Commissioners has been, to revise the whole course of criminal procedure now in operation, to supply its defects, to correct its errors and abuses, and to substitute for the existing system of practice, one, which, while it should be just in its principles and simple in its details, should embody the entire regulation of this branch of the practice, whether founded upon ancient and unwritten usage, or governed by statutory enactment. They have therefore incorporated in the code now presented, all the provisions which they deem necessary for successfully carrying into effect the laws for the punishment of public offences, in a manner calculated as they believe, to ensure the due protection of the public, and a just preservation of the rights of the citizen. They regret that the time afforded them for presenting the subject to the Legislature, has been so short as to prevent a more full explanation of their system in detail, than they are now enabled to afford. They would gladly have furnished to the Legislature, by annotations explanatory of each provision, the means of judging of the propriety of its adoption, and the reasons which in their judgment prove the necessity of the changes in the existing practice which they propose. The circumstances, however, under which they are placed by the requirement of the statute, that they should report before the first of February next, deprives them of this opportunity. They regret that the labor of the Legislature in examining for themselves the principles and details of the existing practice, as contrasted with those which are now presented,— must be consequently much increased;-a labor which the Commis

sioners would gladly have endeavored to lighten, had time and opportunity allowed.

Restricted, however, as the Commissioners necessarily are, to a general review of the outlines of the proposed code, they will proceed to lay before the Legislature, with as much brevity as possible, the grounds upon which they have acted, and a reference to some of the prominent principles, the adoption of which, with suitable details to carry them out, they have resolved to recommend.

It will be observed, on referring to the proposed code, that it is divided into eight parts, embracing,

1. General definitions and provisions relating to public offences. 2. The courts having original jurisdiction of criminal actions. 3. The prevention of public offences.

4. Proceedings for the removal of public officers, by impeachment or otherwise.

5. Proceedings in criminal actions prosecuted by indictment.

6. Proceedings in the police courts.

7. Special proceedings.

8. Costs in criminal proceedings.

To each of these subjects, in the order thus presented, the Commissioners propose in this report to invite the attention of the Legislature; referring in the observations they intend to make, to the leading outlines, and in some instances, where they deem it necessary, to the details of the code which they submit.

I. General definitions and provisions.

The provisions under this head, which are contained in sections 2 to 14, are mainly declaratory of the existing law, and are designed distinctly to define public offences, and to declare the rights of the people as well as of the citizen in regard to the mode of their prosecution and punishment.

There is, however, one principle contained in this division of the subject, to which the Commissioners deem it proper to allude; namely, the rights of a defendant when legally accused of a public offence. In the 11th section they have incorporated the declaration of the bill of rights, of the right of the defendant to a speedy and public trial, to a defence by counsel, to the production of witnesses on his behalf, and to be confronted with the witnesses against him, in the presence of the court. In respect to the last of these rights, they have found in the existing practice, some regulations resulting from considerations of public policy, which have conflicted with their full and absolute enjoyment, as guaranteed to the defendant by the bill of rights. They refer especially to the legislation applicable to the city of NewYork, permitting the examination of a witness out of court, where, by reason of his being a non-resident of the state, his absence at the time of the trial might lead to the impunity of the defendant. The provision in question was adopted mainly with reference to a class of cases, where persons from other states, were the victims of fraud or impositions in that city, indictable as public offences; and provided for the examination of a witness upon notice to the defendant, and an opportunity to cross-examine, and for the introduction of the testimony thus taken, as evidence upon the trial. This, at present, constitutes the only exception to the rule as prescribed by the bill of rights, that the defendant must be confronted with the witnesses against him;-a rule, which, before the local enactment just referred to, was understood to mean that the testimony of all witnesses on the part of the prosecution, should be given in open court.

The Commissioners are not insensible of the danger of multiplying the exceptions to this rule; and while they fully appreciate the importance to the defendant, of being tried upon testimony, of the credibility of which the jury are enabled to judge, not merely from the facts stated by the witness, but from his manner of testifying, which constitutes so important an element in the right of trial by jury, they are at the same time well convinced that the interests of public jus

tice should be guarded against a contingency, calculated to protect the guilty against the merited punishment of crime. For this purpose, they deem a relaxation of the rule that the defendant should in all cases be confronted with the witnesses against him, in the presence of the Court proper and necessary in two classes of cases.

The first is, where a witness,-who has been examined before a committing magistrate, and whose testimony has been taken in the presence of the defendant, and upon an opportunity afforded him, of crossexamining the witness, is, at the time of the trial, dead or insane, or cannot be found within the state, his deposition may be read. The second is, where a witness on the part of the prosecution, who is unable to give security for his appearance to testify, has been conditionally examined in the presence of, or upon notice to the defendant, with an opportunity to cross-examine him.

The justice of these exceptions to the general rule, the Commissioners, after a careful consideration, have not felt themselves at liberty to doubt. In both cases, the opportunity for a cross-examination will be afforded to the defendant,—an opportunity of which he will not fail to avail himself when the law informs him that he fails to do so at the peril of losing the benefit of a cross-examination on the trial; and in both, he is protected against the use of such testimony, except where a contingency has happened, by which, according to every principle of justice, the rights of the public should not be prejudiced.

These remarks are more especially applicable to the case of a witness who is unable to give security for his appearance at the trial. It is one of the first principles of the law, that no man should be imprisoned but for a crime. This principle has been carried out by the legislature, in reference to the unfortunate debtor; and the only case to be found upon the statute book, in which it has been deemed proper to modify, if not entirely to contravene it, is that of a witness who is unable to give such security as a magistrate may prescribe, for his ap