Punishment.-No instance can be found in which an offense, which is declared to be a misdemeanor, can be visited with the punishment prescribed for a felony. People v. Lyon, 3 N. Y. Cr., 164; 99 N. Y., 216. See People v. Lenhardt, 4 N. Y. Cr., 326. § 5. Definition of felony.-A felony is a crime which is or may be punishable by either 1. Death; or 2. Imprisonment in a state prison. The case of People v. Richards, 7 St. Rep. 756; 44 Hun, 278; 5 N. Y. Cr., 355, was reversed in 108 N. Y., 137; 13 St. Rep. 515. Definition. The common law definition of a felony is inapplicable. People . Lyon, 3 N. Y. Cr., 164; 99 N. Y., 216. In this state, the definition of felony is found in the punishment which may be inflicted. Benedict v. Williams, 48 Hun, 125; 15 St. Rep.,677. Instances.-Assault in the second degree is made a felony. People v. Cole, 2 N. Y. Cr., 112; People v. Sweeney, 4 id., 283; 41 Hun, 340; People v. Terrell, 33 St. Rep., 369; 11 N. Y. Supp., 365. An attempt to escape from lawful confinement on a charge of grand larceny in the first degree and burglary in the third degree, is a felony. People v. Johnson, 46 Hun, 670; 13 St. Rep. 48; aff'd, 110 N. Y., 141; 16 St. Rep. 846. The offense of being a common gambler in selling lottery policies under § 344, ante, is a felony. People v. Dewey, 33 St. Rep., 427; 11 N. Y. Supp., 603 Extortion is a felony. People v. Hughes, 50 St. Rep., 64. The obtaining of goods by false pretenses is within the class of offenses made felonies. Benedict v. Williams, 48 Hun, 125; 15 St. Rep. 677. Peculation is a felony. People v. Lyon, 99 N. Y., 219; 3 N. Y. Cr., 161. See People v. Cooper, 3 N. Y. Cr., 119. § 6. Definition of misdemeanor.-Any other crime is a misdemeanor. The case of People v. Richards, 7 St. Rep. 756; 44 Hun, 278; 5 N. Y. Cr., 355, was reversed in 108 N. Y., 137; 13 St. Rep. 515. Instances.-The offense of assault in the third degree is but a misdemeanor. People ex rel. Devoe v. Kelly, 2 N. Y. Cr., 431; 32 Hun, 536. The keeping of a bawdy house is a misdemeanor. People ex rel. Van Houton v. Sadler, 97 N. Y., 146; 3 N. Y. Cr., 473. Libel is a misdemeanor. People v. Parr, 4 N. Y. Cr., 546; § 243. post. Petit larceny is a misdemeanor. People ex rel. Laughlin v. Finn, 26 Hun, 00. See People v. Lyon, 3 N. Y. Cr., 166; 99 N. Y., 219; People v. Cooper, 3 N. Y. Cr., 119. § 7. Objects of the Penal Code-This Code specifies the classes of persons who are deemed capable of crimes, and liable to punishment therefor; defines the nature of the various crimes; and prescribes the kind and measure of punishment to be inflicted for each. Object.-The Penal Code was designed to codify the existing law. People v. Sharp, 9 St. Rep., 165. This Code was enacted for the purpose of embodying in a single statute the system of criminal law applicable to the state. People v. Jaehne, 3 St. Rep. 11; 103 N. Y.,193; 4 N. Ÿ. Cr., 478. It was intended as a revision of the prior laws in respect to crimes and their punishment, and as a substitute for the scattered and fragmentary legislation which preceded it. Id. This Code was intended to define all, or nearly all, crimes, and to provide for their punishment. People v. Hallenbeck, 1 N. Y. Cr., 437, note; 65 How., 401. This Code is to be regarded more in the light of a codification of the body of the criminal law than as materially altering and enlarging its scope and nature. People v. Richards, 108 N. Y., 144; 13 St. Rep. 515. The design in 1881 was to codify the criminal laws of the state and embrace them all in a single enactment under a uniform system. People 2. Moran, 123 N. Y., 263; 8 N. Y. Cr., 114; 33 St. Rep., 398; rev'g, 54 Hun, 279; 7 N. Y. Cr., 336; 27 St. Rep., 20. It must be assumed that the authors of the criminal legislation of that year had considered the existing laws on any subject and had omitted only such provisions thereof as they deemed superseded by the proposed Code or as was otherwise repealed. Id. This section does not relate to or include the evidence which may be given or the degree of proof required upon an inquiry or during a prosecution, to se cure a conviction and punishment for crime. People e. Beckwith, 12 St. Rep. 795. 108 N. Y., 73; 7 Ñ. Y., Cr., 162. See People v. McTameny, 30 Hun, 507; 1 N. Y. Cr. 443, 13 Abb. N. C., 59; 66 How., 75; 17 W. Dig., 492. 8. Procedure, how regulated.-The manner of prosecuting and convicting criminals is regulated by the Code of Criminal Procedure. See chap. 442 of 1881. The case of Matter of McDonald, 2 N. Y. Cr., 82, was reversed in People ex rel. McDonald v. Keeler, id. 141. This case was itself reversed by the court of appeals in 99 N. Y., 474; 3 N. Y. Cr., 348. The manner of inquiring into and prosecuting an act criminal in its nature is regulated by the Code of Criminal Procedure. People v. Beckwith, 12 St. Rep., 795; 108 N. Y., 73; 7 N. Y. Cr. 162. § 9. Conviction must precede punishment. The punishments prescribed by this Code can be inflicted only upon a legal conviction in a court having jurisdiction. See section 3 of Code of Criminal Procedure; section 1, Art. 1 of State Constitution. The case of Matter of McDonald, 2 N. Y. Cr.. 82, was reversed in People ex rel. McDonald v. Keeler, id., 141. The latter case was itself reversed by the court of appeals in 99 N. Y., 474; 3 N. Y. Cr., 348. Jurisdiction.-The courts of this state have no jurisdiction over crime committed in the New York city post-office. People v. Marra, 4 N. Y. Cr,, 304. 10. Jury to find degree of crime.-Whenever a crime is distinguished into degrees, the jury, if they convict the prisoner, must find the degree of the crime, of which he is guilty. See sections 35, 436-438 and 440, pest. See section 444 of Code of Criminal Procedure. Object. The object and intention of this section evidently were to guard and protect the rights of the defendant so that the court, in inflicting the punishment, might be advised of the exact nature of the crime of which he was con victed. People v. Rugg, 98 N. Y., 551; 3 N. Y. Cr., 172. Construction.-This section must be construed with the qualifications and restrictions contained in sections 436 and 437 of the Code of Criminal Procedure. Id. 11. General rules of construction of this act-The rule that a penal statute is to be strictly construed does not apply to this Code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms to promote justice and effect the objects of the law. Construction, rules of.-The provisions of the Code must be construed, according to the fair import of their terms, to promote justice and effect the objects of the law. People v. Whedon, 2 N. Y. Cr., 320; People v. Phelps, 44 St. Rep, 911; 133 N. Y., 269. The requirements of the Code, if they are expressed in plain and unambiguous language, are not subject to any rule of construction which tends to subvert its plain meaning and effect. People v. Moran, 123 N. Y., 263; 8 N. Y. Cr.. 114; 33 S.. Rep., 398; rev'g 54 Hun, 279; 7 N. Y. Cr., 336; 27 St. Rep.. 20. This Code is a revision of prior law on criminal offenses and a substitute for the scattered and fragmentary legislation that preceded it, and must be construed with reference to the law which it replaced. People v. Fanshawe, 59 St. Rep., 3; aff'g 47 id, 331. Where an offense is defined in the same language as was employed before, or substantially the same, it will be presumed that no change was intended, unless the legislative intent in that direction is Clear Id.; People v. Jaehne, 103 N. Y., 193; 3 St. Rep., 11; People v. Stevens, 109 N. Y., 162; 14 St. Rep., 808; People v. Richards, 108 N. Y., 114; 13 St. Rep., 515; People v. Palmer, 109 N. Y., 110; 15 St. Rep., 78. Identity in the names of offenses at common law and under a statute does not necessarily imply that the same precise constituents, and no others, enter into each. People v. Most, 128 N. Y., 113; 38 St. Rep., 829; see People v. Hollenbeck, 1 N. Y. Cr., 437, note; 65 How., 401; People v. Bauer, 37 Hun, 408. § 12. Of sections declaring crimes punishable.-The several sections of this code which declare certain crimes to be punishable as therein mentioned devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed, but such court may in its discretion suspend sentence, during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not exceed ten years and such person has never been convicted of a felony. Courts of special sessions are empowered to suspend sentence and at any time within the longest period for which a defendant might have been sentenced, may issue process for the re-arrest of the defendant, and when arraigned the court as it is then constituted may proceed to enter judgment and impose sentence. In the case of children under sixteen years of age, at the time of conviction, the longest period of time after suspension of sentence within which a sentence may be imposed for such offense shall be one year; and in any proceeding of a criminal nature, triable before a magistrate, the magistrate upon conviction, may suspend sentence and place the offender under probation and at any time thereafter, during the longest period for which he could have been committed in the first instance, such magistrate, or his successor, if his term has expired, may pronounce any judgment or sentence or impose any fine or other penalty, or make any commitment which might have been pronounced, imposed or made at the time the conviction was had. Am'd by ch. 655, L. 1905. Takes effect Sept. 1, 1905. 13. Punishments, how determined. Corporations punishable by fine.-Whenever in this Code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by this Code. In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable with imprisonment, as for a felony, such corporation is punishable by a fine of not more than five thousand dollars. Amended by chap. 218 of 1892. This amendment added the provision as to the manner of punishing corporations. See section 705, post. § 14. Punishment of felonies when not fixed by statute. -A person convicted of a crime declared to be a felony, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment for not more than seven years, or by a fine of not more than one thousand dollars, or by both. To take a case out of the general provisions, prescribed by this and the following section, it is needful to find some provision of law specially prescribing the punishment for the particular crime under consideration. People v. Meakim, 44 St. Rep., 752; 8 N. Y. Cr., 412; 133 N. Y., 223; aff'g, 61 Hun, 327; 40 St. Rep., 686. § 15. Punishment of misdemeanors.-A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both. See notes under preceding section. See section 706, post. The case of Loos v. Wilkinson, 51 Hun, 85; 10 St. Rep. 297; 5 N. Y. Supp., 414; was reversed in 113 N. Y., 485; 23 St. Rep. 282. Before Code. This section is not applicable to a crime committed before this Code took effect. People ex rel. Van Houton v. Sadler, 97 N. Y., 146; 3 N. Y. Cr., 474. When appealable.-A sentence is properly pronounced under this section in case there is no other punishment for the offense specially prescribed by any other statutory provision in force at the time of the conviction and sentence. People v. Palmer. 6 St. Rep. 341; 43 Hun, 408; 5 N. Y. Cr., 107. When crimes are defined in the Code, and are therein declared to be misdemeanors, and no punishment is therein prescribed, the punishment specified in this section is proper. People v. Hollenbeck, 1 N. Y. Cr., 437, note; 65 How., 401. The exception in this section was not to take away the effect of section 726, post. People v. Hollenbeck, 1 N. Y. Cr., 437, note; 65 How., 401; People v. McTameny, 1 N. Y. Cr., 442; 30 Hun. 505; 13 Abb. N. C., 56; 66 How., 70. When, by some other provision of the Code, an offense is simply made a misdemeanor, the punishment is not considered as thereby "specially prescribed." People v. Christy, 47 St. Rep., 926; 65 Hun, 351; 20 N. Y. Supp., 279. Libel is punishable under this section. People v. Parr, 4 N. Y. Cr., 546. Imprisonment for assault in the third degree must be in a penitentiary or county jail, pursuant to the provisions of this section. People ex rel. Devoe v. Kelly, 2 N. Y. Cr., 432; 32 Hun, 536; S. C., on appeal to court of appeals, 97 N. Y, 212; 2 N. Y. Cr., 437. Special sessions.-The court of special sessions is restricted by section 717 of Code of Criminal Procedure, in imposing sentence. People ex rel. Stokes v. Riseley, 38 Hun, 281; 4 N. Y. Cr., 109; People v. Carter, 48 Hun, 167; 15 St. Rep. 840. This section does not provide for and limit the judgment of a court of spe cial sessions. Burns v. Norton, 35 St. Rep., 418. Section 717 of the Code of Criminal Procedure governs such cases. Id. This section does not expressly or impliedly repeal section 717 of the Code of Criminal Procedure. People ex rel. Knowlton v. Sadler, 2 N. Y. Cr., 439. See People v. Meakim, 133 N. Y., 224; 8 N. Y. Cr., 412; 44 St. Rep., 752; aff'g 61 Hun, 327; 40 St. Rep., 686; People v. Upton, 38 Hun, 107; 4 N. Y. Cr., 469; Brummer v. Downs, 43 St. Rep., 824; 17 N. Y. Supp., 636; Matter of Hampe, 2 City Ct., 403, note. TITLE I PERSONS PUNISHABLE FOR CRIME, SECTION 16. What persons are punishable criminally. 17. Presumption of responsibility in general. 18. Id., as to child under seven years. 19. Age of capability for crime. Age, how determined by examina tion By record of baptism or birth. By family bible. 20, 21. Irresponsibility, etc., of idiot, lunatic, etc. 22. Intoxicated persons. 23. Morbid criminal propensity. 24. Rule as to married woman. 25. Rule as to persons acting under threats, etc. 26. Id., when not done in defense of self or another. § 16. What persons are punishable criminally.--The following persons are liable to punishment within the state: 1. A person who commits within the state any crime, in whole or in part: 2. A person who commits without the state any offense which, if committed within the state, would be larceny under the laws of the state, and is afterward found with any of the property stolen or feloniously appropriated within this state; 3. A person who, being without the state, causes, procures, aids or abets another to commit crime within the state; 4. A person who, being out of this state, abducts or kidnaps by force or fraud, any person contrary to the laws of the place where such act is committed, and brings, sends or conveys such person within the limits of this state, and is afterward found therein; 5. A person who, being out of this state, and with intent to cause within it a result contrary to the laws of this state, does an act which, in its natural and usual course, results in an act or effect contrary to its laws. See sections 185, 540 and 676, post. See People v. Bliven, 112 N. Y., 79; 14 St. Rep. 495 People v. Lyon, 99id., 210; 3 N. Y. Cr., 161; People v. Marra, 4 id., 304. The burden of § 17. Presumption of responsibility in general.-A perSon is presumed to be responsible for his acts. proving that he is irresponsible is upon the accused person, except as otherwise prescribed in this Code. The provision of the Revised Statutes (part 4, chap. 1, title 7. section 2) was abrogated by this section. People v. Taylor, 52 St. Rep., 919; 138 N. Y., 407. If the prisoner is sufficiently in possession of his faculties to form an intent |