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§ 134. PERSONS, OVER SIXTEEN AND UNDER TWENTY-ONE YEARS OF

AGE, MAY BE SENTENCED TO THE PENITENTIARY INSTEAD
OF STATE'S PRISON.

Whenever any person, under the age of twenty-one and above the age of sixteen years, shall be convicted of an offence punishable with imprisonment in the State prison, in either of the judicial districts of the State having a penitentiary within said judicial district, the court, before which such conviction shall be had, may, in its discretion, sentence the person so convicted to imprisonment in the penitentiary situated in that judicial district. Every person so sentenced shall be received into the said penitentiary, and shall be kept and employed in the manner prescribed by law, and shall be subject to the rules and discipline of said penitentiary.

And it shall be the duty of the sheriff of any county within the said judicial district, in which any person shall be convicted and sentenced as above provided, to convey such person to the penitentiary situated in such judicial district, and deliver him to the superintendent thereof; for which, such sheriff shall be paid by the State treasurer such fees as are allowed by law for conveying convicts to the State prison.2

§ 135. WHAT STATE PRISONS CONVICTS SHALL BE SENTENCED TO BE

CONFINED IN.

All male convicts, sentenced in the first and second judicial districts to an imprisonment in the State prison, shall be confined in the State prison at Sing Sing; and all so sentenced in the fifth, sixth, seventh and eighth judicial districts, in the State prison at Auburn; and all so sentenced in the other judicial districts of the State, in the Clinton State prison.

All female convicts, sentenced in any county in the State to imprisonment in a State prison, shall be confined in the female convict prison at Sing Sing.3

§ 136. OF STAYING THE SENTENCE.

Even after judgment is pronounced, there are cases in which the execution of the sentence will be stayed. Certain provisions of

'Laws 1856, ch. 158, § 1.

" Id., § 2.

3d vol. R. S., 5th ed., p. 1089, §§ 99, 100.

the statute provide that the execution of the judgment will be stayed in cases where the judgment is sought to be reviewed by writ of error. This subject will be found treated of in a subsequent chapter.1 The statutes also provide, that no act done by a person in a state of insanity can be punished as an offence, and no insane person can be sentenced to any punishment, or punished for any crime or offence while he continues in that state."

In case a convict shall be sentenced to the punishment of death, and shall afterwards become insane, the sheriff of the county, with the concurrence of a justice of the Supreme Court, or, if he be absent from the county, with the concurrence of the county judge of the county in which the conviction was had, may summon a jury of twelve electors to inquire into such insanity, and shall give immediate notice thereof to the district attorney of the county.3

The district attorney shall attend such inquiry, and may produce witnesses before the jury; for which purpose he shall have the same power to issue subpoenas as for witnesses to attend a grand jury, and disobedience thereto may be punished by the court of oyer and terminer, which shall next sit in such county, in the same manner as disobedience to any process issued by such court.4

The inquisition of the jury shall be signed by them and the sheriff. If it be found, by such inquisition, that such convict is insane, the sheriff shall suspend execution of the warrant directing the death of such convict, until he shall receive a warrant from the Governor of the State, or from the justices of the Supreme Court, directing the execution of such convict.5

The sheriff shall immediately transmit such inquisition to the Governor, who may, as soon as he shall be convinced of the sanity of such convict, issue a warrant appointing a time and place for his execution, pursuant to his sentence."

By the common law, when a woman was convicted of a capital crime, she might allege pregnancy in delay of execution. By

1 Post.

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2 R. S., 658, § 16.

• Id., § 18.

• Id., § 19.

2 R. S., 698, § 2. • Id., § 17.

1 Hale P. C., 368; 2 Id., 406-413; 3 Inst., 17, 18; 2 Hawk. P. C., ch. 51, § 9; 4 Blac. Com., 395.

our statute, if a female convict, sentenced to the punishment of death, be pregnant, the sheriff shall, in like manner as above specified in cases of insanity, summon a jury of six physicians, and shall give the like notice to the district attorney, who shall attend, and have power to issue subpoenas as above provided, and with the like effect. An inquisition shall, in like manner, be made and signed by the jurors and the sheriff.1

If, by such inquisition, it shall appear that such female convict is quick with child, the sheriff shall, in like manner, suspend the execution of her sentence, and shall transmit the inquisition to the governor; and whenever the governor shall be satisfied that such female convict is no longer quick with child, he shall issue his warrant appointing a day for her execution, pursuant to her sentence, or he may, at his discretion, commute her punishment to perpetual imprisonment in the State prison.2

The fact that a female defendant is quick with child, will not operate as a plea in bar at the trial, or as a cause for arresting the judgment, but can only be pleaded in stay of execution.3

When any insane convicts are imprisoned, a physician of a State prison is to certify that fact to the inspectors, who are thereupon to take proceedings to cause such convict to be conveyed to the State lunatic asylum for insane convicts.1

By a late statute, it is provided that no fine imposed by any court for any criminal offence shall be remitted or reduced, except upon an application made in open court, and upon proof that two days' notice, in writing, of such application, and copies of the papers upon which the same is founded, have been served upon the district attorney of the county in which the conviction was had, and by an order of the court, entered by the clerk thereof in its minutes.5

§ 137. OF THE DISQUALIFICATIONS CONSEQUENT UPON SENTENCE. Upon a person being sentenced by the court for the commission of a criminal offence, besides the duration of the term of imprisonment, there are certain disabilities and suspension of civil

1 2 R. S., 659, § 20.

• Id., §§ 21, 22.

3 Inst., 17; 2 Hale P. C., 413; 1 Id., 368; 4 Blac. Com., 395. 5th ed., R. S., vol. 2, p. 898, § 77.

Laws 1861, ch. 333, § 1, p. 781.

rights consequent thereon. The disqualifications consequent upon a sentence, by which all the civil rights of the person sentenced are suspended commences, as does the running of the time of imprisonment from the moment of passing sentence.1

A sentence of imprisonment in a State prison for any term less than life, suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power during the term of such imprisonment.2

And a person sentenced to imprisonment in a State prison for life, shall thereafter be deemed civilly dead.3

No person sentenced upon a conviction for felony shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the Governor or by the Legis lature, except in the cases specially provided by law; but no sentence upon an offence other than a felony, shall disqualify or render any person incompetent to be sworn or to testify in any cause, matter or proceeding, civil or criminal.+

The Revised Statutes, however, have made an exception to the above rule by allowing convicts to testify in cases of offences committed on the persons of individuals, while imprisoned in a State or county prison.5

Petit larceny has been held not to be a felony within the provisions of the statute above referred to, and that conseqently a conviction for that offence does not render the offender an incompetent witness, though it may be used by way of impeaching his credit.6

A person convicted of perjury, is an incompetent witness, though he has been pardoned by the Governor, and the pardon purports to restore him to all his civil rights, the Legislature having provided that such convict shall not be received as a witness till such judgment be reversed; but such incapacity to testify, is the result of a rule of evidence, and not a punishment of the offence."

'Miller v. Finkle, 1 Park., 374.

'2 R. S., 701, § 29.

' 2 R. S., 701, § 30. For Hist. of the Doctrine of Civil Death. Vide 6 John., ch. 118.

4

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' 2 R. S., 701, § 33.

R. S. 5th ed., vol. 3, p. 1101, § 179.

Shay v. Peo., 4 Park., 353; Carpenter v. Nixon, 5 Hill, 260.

Houghtaling v. Kelderhouse, 1 Park., 241.

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No conviction of any person for any offence whatever (except upon an outlawry for treason), shall work a forfeiture of any goods, chattels, lands, tenements, or hereditaments, or of any right or interest therein; and all forfeitures to the people of this State, in the nature of deodands, or in cases of suicide, or where any person shall flee from justice, are abolished.1

The provisions of the statute in relation to bigamy do not extend to any person by reason of any former marriage with a husband or wife, who shall have been sentenced to imprisonment for life.2

The person of a convict sentenced to imprisonment in a State prison, is under the protection of the law, and any injury to his person not authorized by law, is punishable in the same manner as if he were not sentenced or convicted.3

Every person injured by the commission of any felony for which the offender shall be sentenced to imprisonment in a State prison, shall be deemed a creditor of such offender within the provisions of the second article of the first title of the fifth chapter of the Revised Statutes; and the amount of damages sustained by such injured person, shall be ascertained in a suit to be brought for that purpose by him against the trustees of the estate of such offender, who shall be appointed under the provisions of the said article.1

§ 138. COPIES OF SENTENCE, WHEN TO BE FURNISHED SHERIFF, AND

HIS DUTY THEREON.

Whenever a sentence of imprisonment in a county jail shall be pronounced upon any person convicted of any offence, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county, a transcript of the entry of such conviction in the minutes of the court, and of the sentence thereupon, duly certified by such clerk, which shall be a sufficient authority to such sheriff to execute such sentence, and he shall execute the same accordingly.5

When such convict shall be sentenced to imprisonment in a State prison, the clerk of the court in which such sentence shall

1

2 R. S., 701, § 33..

4

2 R. S., 701, § 31.

2 R. S., 700, §§ 15, 16.

2 R. S., 739, § 13.

2 R. S., 688, § 9, subdiv. 6.

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