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Religious liberty.

ARTICLE I-Continued.

SEC. 3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to ali mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

This provision does not shield a witness from cross-examination as to his religious belief. Stanbro v. Hopkins, 28 Barb. 265.

A law against theatrical representations on Sunday is valid. Lindenmuller v. People, 33 Barb. 548; Neuendorff v. Duryea, 69 N. Y. 557; S. C., 25 Am. Rep. 235.

Writ of habeas corpus.

SEC. 4. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.

Bail, fines.

SEC. 5. Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained.

The act of 1888, chap. 489, prescribing the use of electricity as the means of executing the death penalty, is constitutional. People ex rel. Kremmler v. Durston, 27 State Rep. 966.

Although there is a general maximum, Legislature may change or increase the punishment as to particular localities. Matter of Bayard, 25 Hun, 546.

The provision as to excessive bail applies only to criminal proceedings. People v. Tweed, 13 Abb. (N. S.) 148.

Disqualification for office is not an unconstitutional punishment for crime. Barker v. People, 20 Johns. 427.

Grand jury - Bill of rights.

SEC. 6. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service; and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace, and in

ARTICLE I-Continued.

cases of petit larceny, under the regulation of the Legisla ture), unless on presentment or indictment of a grand jury, and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

See People v. Sharp, 107 N. Y. 427; 1 Am. St. Rep. 851.

INDICTMENT.-A law allowing the indictment and trial of a burglar in any county into which he carries the property is valid: Mack v. People, 82 N. Y. 235; same principle. People v. Dowling, 84 id. 478.

Indictment by a grand jury de facto under an invalid statute is good. People v. Petrea, 92 N. Y. 128.

Provisions of Code Criminal Procedure relative to amending defective indictments are not violative of this section. People v. Johnson, 104 N. Y. 213.

COUNSEL. This provision entitles the accused to counsel on trials by courts-martial. People ex rel Garling y. Van Allen, 55 N. Y. 31.

Prisoner has a right to interview with counsel. People v. Riseley, 13 Abb. N. C. 186.

Policeman on trial before police board has no right to counsel. People v. Police Comrs., 31 Hun, 209.

TWICE IN JEOPARDY. -"Former jeopardy" does not protect against new trial. People v. Palmer, 109 N. Y. 418. A prisoner may be tried on a second indictment after a nol. pros. or supersedeas of the first, to which a plea to the jurisdiction only had been overruled. Gardiner v. People, 6 Park. 155, 190.

A new trial cannot be granted where the prisoner has been acquitted of a felony. People v. Comstock, 8 Wend. 549.

A writ of error at the suit of the people will not lie after judgment for the defendant in a criminal case. People v. Corning, 2 N. Y. 9.

A prisoner, sentenced upon a regular trial and conviction, cannot be re-tried. Shepherd v. People. 25 N. Y. 406; but the judgment may be corrected under the act of 1863. Hussy v. People, 47 Barb. 503.

Where a conviction is reversed at the suit of the prisoner, a new trial may be ordered. People v. Ruloff, 5 Park. 77.

Where a prisoner has been put on trial, a juror cannot be withdrawn without his consent. People v. Barrett, 2 Cai. 304; Grant v. People, 4 Park. 527; Klock v. People, 2 id. 676.

In case of disagreement the jury may be discharged by the court, and the prisoner may be re-tried; People v. Goodwin, 18 Johns. 187; so where, being unable to agree, they separate without authority, and are afterward discharged. People v. Reagle, 60 Barb. 527.

In cases of misdemeanor the court of sessions may discharge the jury, without consent of the prisoner, and he may be tried again. People v. Denton, 2 Johns, Cas. 275.

ARTICLE I-Continued.

An arrest of judgment after conviction for felony is not a bar to a Becond indictment. People v. Casborns, 13 Johns. 351.

A prisoner is not put in jeopardy where the evidence fails to establish the offense charged. Canter v. People, 1 Abb. Dec. 305.

Conviction for assault and battery no bar to indictment for murder, where the person assaulted subsequently dies of the blows. Burns v. People, 1 Park. 182.

Where one is convicted of murder, and the law is subsequently repealed without reservation, and a new law enacted, he cannot be tried again, nor can he be executed under a re-enactment of the old law. Hartung v. People, 26 N. Y. 167. Habitual criminals act valid. People v. Mc Carthy, 45 How. Pr. 97. TESTIFYING FOR HIMSELF. An act requiring parties to make discovery on oath concerning an indictable offense, but forbidding the answers from being used in evidence against them, is unconstitutional; Perrine v. Striker, 7 Pai. 598; nor is a person protected from testifying in a criminal case against another, on the ground that his testimony may tend to implicate him in a crime, provided he is protected by statute against the use of such testimony on his own trial. People ex rel. Hackley v. Kelley, 24 N. Y. 74.

Act allowing prisoners to testify for themselves valid. People v. Courtney, 94 N. Y. 90.

Where a prisoner testifies in his own behalf, he is subject to the same rules and tests as other witnesses. People v. Brandon, 42 N .Y. 265. By offering himself he waives the constitutional privilege. Connors v. People, 50 N. Y. 240.

DUE PROCESS.-A law authorizing the commitment of a person to the State Inebriate Asylum, upon ex parte affidavits alone, is unconstitutional. Matter of James, 30 How. Pr. 446.

Where, before the expiration of a term of imprisonment, the prisoner escapes, no new award of execution is necessary; he may be retaken and confined under the original judgment. Haggerty v. People, 53 N. Y. 478.

A forcible examination, under order of a coroner, of a female prisoner by physicians, for the purpose of obtaining evidence of her recent pregnancy, is a violation of the Constitution. People v. Mc Coy, 45 How. Pr. 215.

This provision has no reference to disciplinary proceedings before a medical society. Matter of Smith, 10 Wend. 449.

A law authorizing a condemnation of animals found trespassing, without notice to the owner, is unconstitutional; Rockwell v. Nearing. 35 N. Y. 302; otherwise where notice is required. Cook v. Gregg, 48

N. Y. 399.

Canal commissioners are constitutionally authorized to punish witnesses for contempt. People v. Learned, 5 Hun, 626.

As to what is "due process of law," see Matter of McAdam, 27 State Rep. 353.

"Due process" does not require proceeding according to common law, nor personal service. Happy v. Mosher, 48 N. Y. 313. In taking private Owners property for public use notice to owners by publication is valid.

v. Albany, 15 Wend. 374; Matter of Union, etc., R. Co., 112 N. Y. 61. "Due process of law" simply requires that a party shall have his day in court; the Legislature may take away a particular remedy and give a new one. People ex rel. v. Supervisors, 70 N. Y. 228,

ARTICLE I Continued.

As to when the attachment of an indebtedness due a non-resident without notice is within the provision of due process of law, see Martin 7. Cent. Vt. R. Co., 50 Hun, 347.

The principle that property shall not be taken without "due process of law," and that such due process includes notices to the owner is for the benefit of the owner and not of third persons. People v. Turner, 49 Hua, 467.

After the work was commenced rescinded without notice. Held, prohibition against taking private City of Buffalo v. Chadeaque, 27

The common council of a city grauts to defendant a permit to build certain frame houses within its limits. the resolution granting the permit was void as violative of the constitntional property without due process of law. State Rep. 60.

Chap. 448, Laws 1885, relating to comptroller's deeds as conclusive evidence of regularity of proceedings is constitutional. People v. Turner, 27 State Rep. 158.

As to provisions for the discovery and delivery of the property of a decedent. Matter of Beebe, 20 Hun, 462; Matter of Curry, 25 id. 321.

Provisions for taking testimony of witnesses conditionally in criminal proceedings, valid. People v. Williams, 35 Hun, 516.

A statute allowing sheriffs to withhold property, seized under attach. ments which have been vacated, from the rightful owners until payment of costs against the wrongful claimant, invalid. Bowe v. U. S. Reflector Co., 36 Hun, 407.

The act for the summary conviction of habitual thieves is valid. People v. McCarthy, 45 How. Pr. 97.

The act compensating parties for damage by mobs and riots is not objectionable as taking private property for public use without due process. Darlington v. Mayor of New York, 31 N. Y. 164.

A statute freeing a sheriff from liability and substituting his indemnitors, valid. Hein v. Davidson, 96 N. Y. 175.

An act authorizing sentence by a different court from that in which the conviction was had is valid. People v. Bork, 96 N. Y. 188.

An act providing for appointing receivers of insolvent insurance companies is valid. Atty -Gen. v. No. Am. Life Ins. Co., 82 N. Y. 172.

An act authorizing service of process on a director of a foreign corporation temporarily within the State, valid. Hiller v. Burlington, etc., R. Co., 70 N. Y. 223.

A statute authorizing the seizure of any property found in possession of a tax debtor is valid. Hersee v. Porter, 100 N. Y. 403.

A statute allowing the prohibition of transfer of negotiable securities by the publication of notice, invalid. People v. Otis, 90 N. Y. 43.

A statute prohibiting the sale or disposal of any article of food or any offer or attempt to do so, upon any representation or inducement that anything else will be delivered as a gift, prize, premium, or reward to the purchaser is unconstitutional. People v. Gillson, 109 N. Y. 389. Seizure of milk below proper standard without notice, valid. Blazier v. Miller, 10 Hun, 435.

Prohibited sale of adulterated milk, valid. N. Y. 323.

Prohibiting sale of imitation butter, valid. N. Y. 123; 59 Am. Rep. 483.

People v. Kibler, 106

People v. Arensberg, 105

Statute giving houses of Legislature power to punish for contempt for refusing to testify, valid. People v. Keeler, 99 N. Y. 463; 52 Am. Rep. 49.

ARTICLE I-Continued.

Act declaring what shall be deemed adulterated milk, invalid. People v. Cipperly, 37 Hun, 319.

Game law valid. Phelps v. Racey, 60 N. Y. 10; 10 Am. Rep. 140. Destruction of fish-nets found in waters in violation of game law. Lawton v. Steele, 6 N. Y. Supp. 15.

Trial by jury not always essential to due process. Matter of Curry, 25 Hun, 321.

Tenement-house cigar act invalid. Matter of Jacobs, 98 N. Y. 98; 50 Am. Rep. 636.

Act regulating height of buildings, valid. People ex rel. Kemp v. D'Oeuch, 111 N. Y. 359. So act prohibiting sale or bringing of any milk diluted with water or adulterated to a butter or cheese manufactory to be manufactured, is valid. People v. West, 106 N. Y. 293.

Oleomargarine act invalid. People v. Marx, 90 N. Y. 377; 52 Am. Rep. 34.

Civil damage act invalid. Bertholf v. O'Reilly, 74 N. Y. 509; 30 Am. Rep. 323.

TAKING PRIVATE PROPERTY.—The Legislature may prohibit a use of private property which violates the duty the owner owes to his neighbor or to the State. Prentice v. Weston, 111 N. Y. 460. This does not include taxation. People ex rel. Griffin v. Mayor of Brooklyn, 4 N. Y. 419; Brewster v. City of Syracuse, 19 d. 216. But it includes prospective profits on a State contract. Danolds v. State, 89 N. Y. 36.

It belongs to the Legislature and not to the courts to determine whether the public benefit will justify the taking of private property for public use. Beekman v. Saratoga & S. R. R Co., 3 Pai. 45; Harris v. Thompson, 9 Barb. 350; Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9; Buffalo & N. Y. R. R. Co. v. Brainard, 9 N. Y. 100; People v. Smith, 21 id. 595; Ex parte Townsend, 39 id. 171; Dean Street, 53 id. 60; and how much or what interest shall be taken. Brooklyn Park Commers v. Armstrong, 45 N. Y. 234.

But the question whether the purpose is public or private is a judicial one, to be determined by the courts; the grant by the Legislature of the right to take is not conclusive evidence that the use is a public one; so the provisions authorizing the taking of land for a rural cemetery association by proceeding in invitum, is unconstitutional. Matter of Danesville Cemetery Ass'n, 66 N. Y. 569.

The exercise of the right of eminent domain does not impair the validity of contracts. Lansing v. Smith, 4 Wend. 9.

The right may be exercised for the benefit and at the expense of a few. Owners v. Albany, 15 Wend. 374; through the instrumentality of a foreign or other corporation. Ex parte Townsend, 39 N. Y. 171; Bloomfield v. Natural Gas-light Co., 63 Barb. 437.

The national government may apply to condemn lands. Matter of U. S., 96 N. Y. 227.

Owner entitled to notice and hearing. Stuart v. Palmer, 74 N. Y. 183; 80 Am. Rep. 289; but Legislature may dictate manner and procedure; Matter of Mayor, 90 N. Y. 569; Matter of Livingston Street, 82 id. 221; but the court may not be directed to appoint commissioners from a list submitted by a common council. Menges v. City of Albany, 56 id. 374. The permission to take private property for public use implies that it shall not be taken for any other use. Private property cannot be taken for private use. Cochran v. Van Surlay, 20 Wend. 365; Embury v. Connor, 3 N. Y. 511; Powers v Bergen, 6 id. 358; even where compensation is made. Varick v. Smith, 5 Pai, 137; Taylor v. Porter, 4 Hill, 140;

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