Iwas held that the first proceedings against him were not a constitutional bar to the second prosecution for contempt. There had been no trial; the inquiry was informal, to ascertain the facts relating to the interference with the deliberations of the jury, and to determine whether action by the court was necessary at that time. The judge released the relator from custody because he was of the opinion that he had no jurisdiction to act in the then position of the case; on a subsequent presentation of proof formal proceedings were commenced, resulting in the relator's conviction for contempt. People ex rel. Choate v. Barrett (1890) 56 Hun, 351, 9 N. Y. Supp. 321, affirmed in (1890) 121 N. Y. 678, 24 N. E. 1095.

Where a nolle prosequi is entered on an indictment, and a new indictment is found, the defendant cannot, on the second indictment, plead that he is being put twice in jeopardy. He was not put in jeopardy by the first indictment. The prisoner had no trial upon the merits on the former indictment, and was never in jeopardy thereon within the meaning of the Constitution. Gardiner v. People (1866) 6 Park. Crim. Rep. 155.

Variance. Where the court on the defendant's motion directed a verdict of acquittal on the ground of variance between the proof and the indictment, such an acquittal is not a bar to a trial on a new indictment. People v. Meakim (1891) 61 Hun, 327, 15 N. Y. Supp. 917; (1892) 133 N. Y. 214, 30 N. E. 828. The same subject is considered in Canter v. People (1867) 1 Abb. App. Dec. 305, construing 2 Rev. Stat. 701, 24, which provided that a former acquittal on the ground of variance was not a bar to a trial on a new indictment. This provision is continued in 8 340 of the Code of Criminal Procedure.

A view of this provision presented by the statutes of 1860, chap. 410, and 1861, chap. 303, in which the law in relation to capital offenses was changed, was considered in Hartung v. People (1863) 26 N. Y. 167.

The Habitual Criminals Act of 1873, chap. 357, does not violate this provision. People v. McCarthy (1873) 45 How. Pr. 97.

WITNESS AGAINST HIMSELF.

The words "criminal case" in this section mean a prosecution for a criminal offense. "The primary and most obvious sense of the mandate is that a person prosecuted for a crime shall not be compelled to give evidence on behalf of the prosecution against himself in that case." But the right secured by this provision was not vio

lated by 14 of the prohibitory act of 1853, chap. 539, which made a person offending against the act a competent witness against any other person so offending, and he might be compelled to testify in a judicial investigation of the offense, but the testimony so given could not be used against him in any other proceeding, civil or criminal. "If a witness objects to a question on the ground that an answer would criminate himself, he must allege, in substance, that his answer, if repeated as his admission on his own trial, would tend to prove him guilty of a criminal offense." But if he is protected by statute, and the testimony so given cannot be used against him, he is not privileged. People ex rel. Hackley v. Kelly (1861) 24 N. Y. 74; People v. Sharp (1887) 107 N. Y. 429, 1 Am. St. Rep. 851, 14 N. E. 319, in which 8 79 of the Penal Code was held constitutional; Perrine v. Striker (1839) 7 Paige, 598, construing the act of 1837, chap. 437, to prevent usury, which guaranteed immunity to a party who might give evidence in an action under the

statute.

"No one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or afterwards be charged, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained. ... Nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness." People ex rel. Taylor v. Forbes (1894) 143 N. Y. 219, 38 N. E. 303. This rule is reiterated in People ex rel. Lewisohn v. O'Brien (1903) 176 N. Y. 253, 68 N. E. 353, with the additional statement that "where the court can see that the refusal to answer is a mere device to protect a third party, and that the witness is in no possible danger of disclosing facts that would lead to his own indictment and conviction, an answer may be insisted upon." In this case the defendant was sustained in his refusal to answer whether he had ever been in a certain building which was alleged to have been used as a gambling place. Section 342 of the Penal Code does not afford a witness full constitutional protection, for the reason that it does not "prevent the use of evidence against him which may be obtained through his testimony, but simply excludes such testimony." This case was decided in October, 1903. The legislature of 1904, by chap. 649, amended § 342 of the Penal Code to read as follows:

"No person shall be excused from attending and testifying, or

producing any books, papers, or other documents before any court or magistrate, upon any investigation, proceeding, or trial, for a violation of any of the provisions of this chapter, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding."

Upon the passage of this law a new proceeding was instituted against the same defendant and involving the rights of the same witness. People ex rel. Lewisohn v. General Sessions Court (1904) 96 App. Div. 201, 89 N. Y. Supp. 364, affirmed November 15, 1904, 179 N. Y. 594, 72 N. E. 1148 Justice Ingraham, writing the opinion in the appellate division, considers the effect of the constitutional declaration that a person shall not be compelled to be a witness against himself, and says “the right of a witness to refuse to answer a question upon the ground that it would tend to criminate him or subject him to a penalty or to disgrace or degrade him is not protected by a constitutional provision. It is within the power of the legislature to determine the extent and limit of the personal right of a witness to refuse to answer questions asked him in the course of a judicial proceeding. The legislature has power to require a witness to answer any question, except so far as he is protected by the constitutional provision which prohibits his being compelled to be a witness against himself, and it follows that if the answers to the questions asked cannot in any way be used against the witness in a criminal proceeding, the provisions of the Constitution are not violated." The new statute was held to give "the witness complete immunity from prosecution for any crime in relation to the acts about which he was interrogated, and if he has this immunity it necessarily follows that compelling him to answer in relation to the crime, although he was directly connected with it, does not compel him to be a witness against himself in a criminal proceeding." Brown v. Walker, 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644, was cited as sufficient authority for sustaining the amended Penal Code section, for the reason that the section is almost identical with the statute under consideration in that case, and that the provision in relation to the

immunity of the witness is the same in the state Constitution as in the Federal Constitution.

The prohibitory law of 1855, chap. 231, did not compel a person to be a witness against himself. People v. Quant (1855) 12 How. Pr. 83, 88.

The right secured by this provision is violated by the forcible examination of a female prisoner for the purpose of ascertaining her condition. People v. McCoy (1873) 45 How. Pr. 216.

This right was not violated by requiring a defendant on a criminal trial to stand up so that a witness could see him for the purpose of identification. The defendant was not thereby compelled to be a witness against himself. People v. Gardner (1894) 144 N. Y. 119, 28 L. R. A. 699, 43 Am. St. Rep. 741, 38 N. E. 1003.

False and fraudulent statements intended to become the basis of an illegal charge for official fees may, even if they have not become public documents, be used against the defendant when produced in response to a subpœna, and such use of them as evidence is not a violation of this provision. The defendant is not thereby compelled to give evidence against himself. People v. Coombs (1899) 158 N. Y. 532, 53 N. E. 527.

Where private papers of the defendant were unlawfully seized by police officers and used in evidence against him on a prosecution for a crime, his constitutional right was not thereby violated. He was not called as a witness, and was not compelled to give evidence against himself. The possession of the papers was of itself a crime. People v. Adams (1903) 176 N. Y. 359, 63 L. R. A. 406, 98 Am. St. Rep. 675, 68 N. E. 636.

Where, as under the act of 1873, chap. 777, to suppress obscene literature, punishment of the offense is seriously augmented if committed by a person of twenty-one years of age or upwards, "it may well be doubted whether the convict would be properly required to expose himself to it by any information supplied by his own oath. That would be making him a witness against himself, which the Constitution of the state has prohibited in criminal cases. Under this restraint the court must act on the best information that can be obtained, and not unfrequently that will be supplied by the prisoner's own appearance." The judge may consult his own senses and act upon the conclusion which they suggest. People ex rel. Ziegler v. Special Sessions Justices (1877) 10 Hun, 224.

Silence no presumption.-In any proceeding by the state to deprive a citizen of his liberty or property, "the facts which in law justify it must be alleged and established. The legislature has no VOL. IV. CONST. HIST.-6.

power to enact that they may be inferred or presumed from the silence of the party accused, or from his failure to answer under oath. It is a constitutional right of the party charged with the commission of acts which, if true, constitute a crime or create a penalty or impose a forfeiture, to answer without verification. No law can be valid which directly or indirectly compels a party to accuse or incriminate himself, or to testify by affidavit or otherwise with respect to his guilt or innocence." The legislature may not invade his constitutional privilege to remain silent. Re Peck (1901) 167 N. Y. 391, 53 L. R. A. 888, 60 N. E. 775, construing the provision of the liquor tax law relating to the cancelation of a certificate. Re Cullinan (Kray Certificate) 82 App. Div. 445, 81 N. Y. Supp. 567, (1904) 97 App. Div. 122, 89 N. Y. Supp. 683. The same subject was considered in Thomas v. Harrop (1852) 7 How. Pr. 57; Gadsden v. Woodward (1886) 103 N. Y. 242, 8 N. E. 653.

The act of 1867, chap. 194, providing for a constitutional convention, which required a person, if challenged, to take a prescribed oath of loyalty, violated this provision. "His refusal to testify that he is innocent operates to produce his conviction, and seals his guilt.... It is only an evasion of the provision cited to condemn a person for a refusal to swear to innocence." Green v. Shumway (1868) 39 N. Y. 422.

Waiver. This right may be waived, and is waived if the defendant becomes a witness as authorized by the act of 1869, chap. 678, relating to testimony in criminal cases. Connors v. People (1872) 50 N. Y. 240.

The act of 1869 is permissive only, and is constitutional. People ▼. Courtney (1884) 94 N. Y. 490.

The right is also waived by the holder of a liquor tax certificate who puts in a verified answer in a proceeding by petition for the cancelation of his certificate. He might have served an unverified answer. Re Cullinan (Micha Certificate) (1902) 76 App. Div. 362, 78 N. Y. Supp. 466; Brandon v. People (1870) 42 N. Y. 265.

This right is not violated where a person subpoenaed to produce a paper voluntarily surrenders the paper out of court before the return of the subpoena, and the paper is afterwards used as evidence against him. By thus delivering it he waives his constitutional privilege. People v. Sebring (1895) 14 Misc. 31, 35 N. Y. Supp. 237, Rumsey, J.

A person who, at his own request, appears before a grand jury and testifies on a charge of conspiracy, cannot afterwards be heard to allege that his constitutional privilege has been violated. People