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convicted of any offence, committed after such pardon or discharge, shall be punished as follows:

1. If such subsequent offence be such that, upon a first conviction the offender would be punishable in a State prison for life, at the discretion of the court, then such person shall be sentenced to imprisonment in such prison during life.

2. If such subsequent offence be such that, upon a first conviction, the offender would be punishable by imprisonment in a State prison for any term less than life, then such person shall be sentenced to imprisonment, in such prison, for the longest term prescribed upon conviction for such first offence.

3. If such subsequent conviction be for petit larceny, or for any attempt to commit an offence which, if perpetrated, would be punishable by imprisonment in a State prison, then such person shall be sentenced to imprisonment in such prison for a term not exceeding five years.1

The statute declaring a second offence of petit larceny to be punishable in the State prison, is not applicable to a case in which the first conviction took place in another State.2

Under the act of 1862, persons who are convicted for being found armed at night with dangerous weapons, picklocks, and other instruments of burglary, with felonious intent, as mentioned in the act, after a previous conviction for felony, petit larceny, or such offence as is described in the act, are to be deemed guilty of a felony, and to be punished by imprisonment in a State prison not to exceed five years.3

The second offence, by a woman, of endeavoring secretly to conceal the death of any issue of her body which, if born alive, would by law be a bastard, whether it was born dead or alive, or whether it was murdered or not, is a felony, and punishable by imprisonment in a State prison not more than five years.*

§ 150. PUNISHMENT OF PERSONS CONVICTED IN THIS STATE AFTER

PREVIOUS CONVICTIONS IN OTHER STATES OR FOREIGN COUN-
TRIES.

Every person who shall have been convicted in any of the United States, or in any district or territory thereof, or in any

' 2 R. S., 700, § 9. Vide Laws 1862, ch. 374, ante.

' Peo. v. Cæsar, 1 Park., 645. Vide 3 Id., 330.

Laws 1862, ch. 374, § 1, p. 627.

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2 R. S., 694, § 23.

foreign country, of an offence which, if committed in this State, would be punishable by the laws of this State by imprisonment in a State prison shall, upon conviction for any subsequent offence committed in this State, be subject to the punishment prescribed by the Revised Statutes, upon subsequent convictions in the same manner, and to the same extent, as if such first conviction had taken place in a court in this State.1

§ 151. PERSONS CONFINED FOR FINES, WHEN DISCHARGED IF UNABLE TO PAY FINE.

Whenever any person shall be confined in any county prison for the non-payment of any fine not exceeding two hundred and fifty dollars, imposed for any criminal offence, and against whom no other cause of detention shall exist, on satisfactory proof made to the county court of the county in which such person may be confined, that he is unable, and has been ever since his conviction, unable to pay such fine, the court may, in its discretion, order his discharge.2

§ 152. ENFORCEMENT OF FINES AGAINST CORPORATIONS. Whenever a fine shall be imposed upon any corporation, the same may be collected by distringas against their personal estate and chattels real.3

12 R. S., 700, § 10.

'2 R. S., part IV, ch, 3, tit. 1, art. 2, § 28.

'2 R. S., 747, § 44.

C. P.-27.

Section

SECTION V.

OF SUBSEQUENT MISCELLANEOUS PROCEEDINGS.

CLIII.-OF THE EXECUTION OF THE DEATH SENTENCE.

CLIV.-REPRIEVE OF CONVICTS.

CLV.-APPLICATION FOR PARDON.

CLVI.-OF MAKING AND FILING STATEMENTS OF CONVICTION.

CLVII-DISTRICT ATTORNEY TO FURNISH STATEMENT OF CONVICTION.

CLVIII.-DUTY OF THE CLERK THEREON.

CLIX-ADDITIONAL STATEMENT IN RELATION TO INDICTMENTS TO BE MADE BY CLERK
OF COURT.

CLX.-STATEMENT TO BE MADE BY SHERIFF IN RELATION TO CONVICTIONS.
CLXI.-DISTRICT ATTORNEY TO FILE MINUTES OF EVIDENCE.

CXLII.-ORDERS OF CONTINUANCE.

§ 153. OF THE EXECUTION OF THE DEATH SENTENCE. The proceedings upon a warrant for execution are provided for by the Revised Statutes, and are as follows:

Whenever any convict shall be sentenced to the punishment of death, the court, or a major part thereof, of whom the presiding judge shall always be one, shall make out, sign and deliver to the sheriff of the county a warrant, stating such conviction and sentence, and appointing the day on which such sentence shall be executed; such day shall not be less than four weeks and not more than eight weeks from the time of the sentence. The presiding judge of the court, at which such conviction shall have taken place, shall immediately thereupon transmit to the Governor of the State, by mail, a statement of such conviction and sentence, with the notes of the testimony taken by such judge on the trial. The Governor is authorized to require the opinion of the judges of the Court of Appeals, justices of the Supreme Court, and of the Attorney-General, or of any of them, upon any statement so furnished.1

The punishment of death is, in all cases, to be inflicted by hanging the convict by the neck until he be dead. And the punishment is to be inflicted within the walls of the prison of the county in which such conviction shall have taken place, or within a yard or inclosure adjoining said prison.3

It is also made the duty of the sheriff, or under sheriff, of the county to be present at the execution, and to invite the presence, by at least three days' previous notice, of the judges, district attorney,

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1 2.R. S., 658, §§ 11, 12, 13, 14; Laws 1847, ch. 328.

2 R. S., 659, § 25.

Id., § 26; Laws 1835, ch. 258.

clerk, and surrogate of the county, together with two physicians, and twelve reputable citizens, to be selected by said sheriff, or under sheriff, and the said sheriff, or under sheriff, at the request of the criminal, shall permit such minister or ministers of the gospel, not exceeding two, as said criminal shall name, and any of the immediate relatives of said criminal to attend and be present at such execution, and also such officers of the prison, deputies, and constables as said sheriff or under sheriff shall deem expedient to have present; but no other persons than those above mentioned shall be permitted to be present at such execution, nor shall any person under age be permitted to witness the same.1

The sheriff, or under sheriff, and judges attending such execu tion, are to prepare and sign officially a certificate setting forth the time and place thereof, and that such criminal was then and there executed, in conformity to the sentence of the court and the provisions of the statute, and shall procure to said certificate the signatures of the other public officers and persons, not relatives of the criminal, who witnessed such execution; and the sheriff, or under sheriff, is to cause the said certificate to be filed in the office of the clerk of the county, and a copy thereof to be published in the State paper, and in one newspaper, if any printed, in said county.2

The execution of the sentence may be stayed by reason of insanity or pregnancy of the convict;3 and whenever for any reason any convict, sentenced to the punishment of death, shall not have been executed pursuant to such sentence, and the same shall stand in full force, the Supreme Court, on the application of the Attorney General or of the district attorney of the county where the conviction was had, shall issue a writ of habeas corpus to bring such convict before such court, or, if he be at large, a warrant for his apprehension may be issued by the said court or any justice thereof; and, upon such convict being brought before the court, they shall proceed to inquire into the facts and circumstances, and, if no legal reasons exist against the execution of such sentence, it becomes their duty to sign a warrant to the

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sheriff of the proper county, commanding him to do execution of such sentence at such time as shall be appointed therein, which shall be obeyed by such sheriff accordingly.1

Where the execution of the sentence of a convict is respited by the Governor, for the purpose of having the conviction reviewed by an appellate court, it is the duty of the sheriff to execute the sentence of the court on the day to which the execution is respited, unless the judgment be reversed, or annulled, or a further respite be granted, and it is not necessary, in such case, that the convict be previously brought into court by habeas corpus.2

In certain cases, where there is not a jail in the county, or the jail erected shall become unfit or unsafe for the confinement of prisoners, or be destroyed by fire or otherwise, the county judge of such county has power to designate the jail of some contiguous county for the confinement of prisoners; and the sentence of death, in such case, may be inflicted at such other jail the same as if it were located in the county where the conviction were had.3

§ 154. REPRIEVE OF CONVICTS.

By the Constitution the Governor has power to grant reprieves, commutations and pardons, after conviction, for all offences except treason and impeachment, upon such conditions, and with such restrictions and limitations as he may think proper, subject to such regulation as may be prescribed by law relative to the manner of applying for pardons. Upon conviction for treason, he has power to suspend the execution of the sentence until the next session of the Legislature, when they may either pardon, commute the sentence, direct the execution of the sentence, or grant a further reprieve.1

The statute further provides, that no judge, court or officer other than the Governer shall have any authority to reprieve or suspend the execution of any convict sentenced to the punishment of death, except sheriffs, in cases of insanity and pregnancy, as before mentioned; but this section of the statute does not

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2 R. S., 659, § 24.

Peo. v. Enoch, 13 Wend., 159.

* 2 R. S., 659, § 29; Laws 1846, ch. 118. modified by Laws 1847, ch. 280,

§ 29. For the history of Capital Punishment, vide Done v. Peo., 5 Park., 364. 4 Const. N. Y., art. 4, § 5.

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Ante; 2 R. S., 658, § 15.

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