jurisdiction, the same declaration is made respecting the police courts. See p. 11.

The cases in the third subdivision, are excepted in the provision of the constitution first quoted.

§ 9. The proceeding, by which a party charged with a public offence is accused and brought to trial and punishment, is known as a criminal action.

§ 10. A criminal action is prosecuted in the name of the people of the state of New-York as a party, against the party charged with the offence.

§ 11. The party prosecuted in a criminal action, is designated in this code, as the defendant.

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The last three sections treat the proceedings for the trial and punishment of public offences, as a criminal action. In doing so they follow the definition in the Code of Civil Procedure "§ 5. An action is an ordinary proceeding in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence." "§ 7. Actions are of two kinds : 1. Civil, and 2. Criminal." " 9. A criminal action is prosecuted by the state as a party, against a person charged with a public offence, for the punishment thereof."

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These definitions are in accordance with the authority of the most approved elementary writers.

§ 12. In a criminal action, the defendant is entitled, 1. To a speedy and public trial:

2. To be allowed counsel, as in civil actions; or he may appear and defend in person and with counsel; and,

3. To produce witnesses in his behalf, and to be confronted with the witnesses against him in the pre

sence of the court; except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition, in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally, according to sections 218 and 219, the deposition of the witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence be found in the

state.

The first subdivision of this section is taken from the bill of rights. 1 R. S., 2d ed. 95. sec. 14.

The second subdivision is taken from the constitution, art. 1. sec. 6.

In respect to the third subdivision, the Commissioners have found in the existing practice, some regulations, resulting from considerations of public policy, which have conflicted with the full and absolute enjoyment of the privileges guaranteed to the defendant by the bill of rights. They refer especially to the legislation applicable to the city of New-York, 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. Laws of 1844, p. 476, sec. 11. 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 inpositions 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

a rule, which, before the local enactment just referred to, was understood to mean, that the testimony of all the witnesses on the part of the prosecution should be given in open court.

The Commissisoners are not insensible of the danger of multiplying the exceptions to this rule; and while they fully appreciate the inportance 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 justice should be guarded against a contingency, calculated to protect the guilty from 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 case.

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 cross-examining the witness,—is, at the time of the trial, dead or insane, or cannot be found within the state. 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 at liberty to doubt. In both cases, the opportunity for a cross examination is 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 appearance upon the trial of a criminal action. Of the hardship to which this provision has given rise, it is perhaps unnecessary for the Commissioners to speak. Practical illustrations of that hardship might be multiplied, almost without number. Cases might be cited, where an individual, who has accidentally become the witness or the victim of a crime, has been incarcerated for months together, while the defendant was at large on bail; and if it were necessary, instances could be referred to, where the witness was thus incarcerated, while the defendant was virtually entirely discharged, by means of the system of giving worthless bail, of which such frequent and well founded complaints have been made. An abuse like this, subversive as it is, of the first right of the citizen,-to be protected in the enjoyment of his liberty, where he has not by his own act, forfeited it to the law, is in the judgment of the Commissioners, one which ought to be no longer permitted to exist, and which demands from the legislature the application of a prompt and speedy corrective. That it can be so applied, without prejudice to the just rights of the defendant, would seem hardly to admit of doubt; and guarded as it is, by the provisions of sections 218 and 219, by affording to the defendant an opportunity for a cross-examination, the Commissioners feel clear in recommending its adoption.

§ 13. No person can be subjected to a second prosecution for a public offence, for which he has once been prosecuted and duly convicted or acquitted.

This section is founded upon the provision of the constitution, which declares, that "no person shall be subject to be twice put in jeopardy for the same offence." Art. 1, sec. 6. It is declaratory of the principle, about which a difference of judicial opinion has existed in several of the states, but which was set at rest in this state in the case of The People v. Goodwin, 18 Johns. 200-203, that neither the discharge of a jury without a verdict, nor any thing but a legal acquittal, or conviction, is a bar to a second prosecu

tion, or to another trial for the same offence, nor is in any sense within the constitutional protection.

§14. No person can be compelled, in a criminal action, to be a witness against himself; nor can a person charged with a public offence, be subjected before conviction, to any more restraint than is necessary for his detention to answer the charge,

The first clause is conformable to the constitution, art. 1, ser. 6.

The second is declaratory of the common law, which recognizes the detention of a prisoner as only justifiable to enforce his attendance at the trial, and not as a punishment.

§ 15. No person can be convicted of a public offence, where he is entitled to a trial by jury, unless by the verdict of a jury accepted and recorded by the court, or upon a plea of guilty, or upon judgment against him on a demurrer to the indictment in the case mentioned in section 349.

This section is in accordance with the existing law, and with the practice prescribed by the code, defining the only modes in which the defendant can be legally convicted. The phraseology of the section is substantially taken from the report of the Massachusetts Commisssoners, ch. 2, sec. 4.