$537. The clerk, on the application of the district attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a bench warrant into one or more counties. § 538. The bench warrant must be substantially in the following form: "County of Albany, or as the case may be.] "In the name of the people of the state of New-York"To any sheriff, constable, marshal or police [SEAL.] day of man in this state. A. B. having been on "You are therefore commanded, forthwith to arrest the above named A. B., and bring him before that court for judgment; or if the court have adjourned for the term, you are to deliver him into the custody of the sheriff of the county of Albany, [or as the case may be, or in the city and county of New-York "to the keeper of the city prison of the city of New-York."] of 66 City of Albany, [or as the case may be] the day "E. F., clerk." § 539. The bench warrant may be served in any county, in the same manner as a warrant of arrest; except that [CRIM. CODE.] 17 when served in another county, it need not be endorsed by a magistrate of that county. § 540. Whether the bench warrant be served in the county in which it was issued, or in another county, the officer must arrest the defendant and bring him before the court, or commit him to the officer mentioned in the warrant, according to the command thereof. § 541. When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment, and of his plea, and the verdict, if any thereon; and must be asked whether he have any legal cause to show, why judgment should not be pronounced against him. § 542. He may show for cause, against the judgment, 1. That he is insane; and if, in the opinion of the court, there be reasonable ground for believing him to be insane, the question of his insanity must be tried as provided by sections 722 to 725, both inclusive. If upon the trial of that question, the jury find that he is sane, judgment must be pronounced; but if they find him insane, he must be committed to the state lunatic asylum until he become sane; and when notice is given of that fact, as provided in section 729, he must be brought before the court for judgment: 2. That he has good cause to offer, either in arrest of judgment, or for a new trial; in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment, or for a new trial § 543. If no sufficient cause be alleged, or appear to the court, why judgment should not be pronounced, it must thereupon be rendered. The last three sections are in conformity with the existing practice. § 544. After a plea or verdict of guilty, in a case where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the suggestion of either party, that there are circumstances, which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct. $545. The circumstances must be presented, by the testimony of witnesses examined in open court; except, that when a witness is so sick or infirm, as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, at a specified time and place, upon such notice to the adverse party as the court may direct. § 546. No affidavit, or testimony, or representation of any kind, verbal or written, can be offered to, or received by the court, or a member thereof, in aggrava tion or mitigation of the punishment, except as provided in the last two sections. § 547. A violation of the last section is punishable as a misdemeanor, on the part of the person offering or receiving the affidavit or representation; and the person offering it may, in addition, be punished by the court for a contempt. The practice on the subject embraced in the last four sections is extremely loose, and is wholly unregulated, either by statute or by rule. Where the defendant is convicted, if it be by a plea of guilty, the courts sometimes inform themselves of the circustances of the case, so as properly to graduate the punishment, by a reference to the depositions on which the defendant was held to answer; and in other cases, by summarily hearing the witnesses or receiving their affidavits. On the other hand, where the defendant pleads, guilty, it is very common to deliver to the court affidavits in mitigation, which are in turn rebutted by the other side. The whole of this practice is extra judicial, and leads to great abuse. The Commissioners think it should be regulated; and for this purpose propose these sections, which, with what has been said, sufficiently explain themselves. § 548. If the defendant have been convicted of two or more offences, before judgment on either, the judgment may be, that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offences. Conformable to the existing practice. § 549. A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment; which cannot exceed one day for every two dollars of the fine. A sentence that the defendant stand committed until a fine be paid, is now virtually a sentence of perpetual imprisonment, unless the fine be either paid or remitted. The Commissioners deem it proper to provide, that the extent of the imprisonment be limited; and they think that the rule prescribed in this section is reasonable §550. When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offence for which the conviction has been had; and must immediately annex together and file the following papers, which constitute the judgment roll: 1. A copy of the minutes of a challenge interposed by the defendant to the panel of the grand jury, or to an individual grand juror, and the proceedings and decision thereon: 2. The indictment, and a copy of the minutes of the plea or demurrer: 3. A copy of the minutes of a challenge, which may have been interposed to the panel of the trial jury, or to an individual juror, and the proceedings and decision thereon: 4. A copy of the minutes of the trial: 5. A copy of the minutes of the judgment: 6. The bill of exceptions, if there be one. This section abolishes the present technical, and, in many respects, unmeaning form of the judgment roll, and substitutes in its place a plain and accurate history of the case. |