UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 I
 
 THE 
 
 COMMITTING MAGISTRATE, 
 
 A 
 
 TREATISE 
 
 The Arrest, Examination, Bailing, and Commitment of 
 Offenders, including Fugitives from Justice, 
 
 WITH THE 
 
 REMEDIAL P^EATURES OF THE WRITS OF HABEAS CORPUS, 
 CERTIORARI, MANDAMUS, AND PROHIBITION. 
 
 Charles a. Flammer. 
 
 One of the Police Justices of the City oT New York. 
 
 NEW YORK: 
 
 MARTIN B . B R ( > \V N , P R T N f E R , 
 
 Nos. 49 AND 51 Park Place. 
 
 1881.
 
 T 
 
 Entered According to Act ok Congress, in the Year i88i, dv 
 
 CHARLES A. FLAMMER, 
 
 IN THE Office of the Librarian of Congress, at Washington, D. C. 

 
 TO THE HONORABLE 
 
 DORMAN B. EATON, 
 
 "WHO, BESIDES ATTAINING HIGH DISTINCTION AT THE BAR, 
 
 HAS BEEN A CONSPICUOUS LABORER 
 
 IN THE CAUSE OF CIVIL SERVICE REFORM, AND 
 
 TOWARDS SECURING 
 
 A BETTER ADMINISTRATION OF GOVERNMENT IN THE 
 
 CITY OF NEW YORK, THIS WORK IS 
 
 Respectfully Dedicated;
 
 PREFACE. 
 
 Most criminal works contain information respecting the 
 subjects treated of herein, but of a limited character, and 
 usually scattered through the books. 
 
 Tliis condition of affairs induced me to undertake to 
 collect from such works the material they, and such 
 other sources as might suggest themselves to me, would 
 furnish, and mould the whole with such matter as I might 
 appropriately contribute, into a volume sufficiently exten- 
 sive to enable the reader to gather from it a comprehen- 
 sive and fundamental knowledge of the law and practice 
 under the title of this work. 
 
 The greater part of this book was written before 
 the adoption of the recent New York Code of Criminal 
 Procedure, which necessitated material alterations and 
 
 additions. 
 
 C. A. F. 
 
 New York, October 27, 1881.
 
 CONTENTS. 
 
 PAGE 
 
 Introduction ix 
 
 Part I. —Lodging the complaint 1 
 
 Part II. — Examination before warrant 34 
 
 Part III.— The Warrant 54 
 
 Part IV.^ — History of the examination after arrest. The examina- 
 tion as evidence in the trial, and the detention of the 
 accused pending the hearing 81 
 
 Part V. — Order and manner of proceeding on examination after 
 
 arrest 1*^1 
 
 Part VI.— Holding to answer (probable cause) 125 
 
 Part VII.— Bail VS5 
 
 Part VIII. — Commitment 1^>1 
 
 Part IX. — Fugitives from justice 168 
 
 Part X.— Writs of Habeas Corpus, Certiorari, Mandamus and Pro- 
 hibition 181
 
 INTRODUCTION, 
 
 The cases comiug to the notice of the criminal magistrate 
 may be diyided into three chisses : summary conyictions, 
 misdemeanors, and felonies. The most prominent offenses 
 fcilling nnder the fii'st category are intoxication, disorderly 
 conduct, disorderly persons, yagrancy, bastardy, and sundry 
 minor yiolations of corporation and sanitary ordinances, 
 and are denominated summary because the accused per- 
 sons haye their trial immediately, whereas when char<yes 
 belonging to the other categories, /. e, misdemeanoi-s and 
 felonies, are made, an examinoiion is had prior to the trial. 
 We shall confine our attention herein to the cases wherein 
 an examination takes place, and in which there may follow a 
 holdrng to answer before another tribunal, or to await action 
 by a Grand Jury — to that branch of the duties of a 
 magistrate which relates to the commitment of offenders 
 for future disposition elsewhere. 
 
 Fui'ther, since it is the purpose of this work to consider 
 only sucb powers and duties as concern the mao^istrate or 
 those acting under him or by his direction, arrests made 
 without a warrant will not be considered. A study of the 
 numerous treatises on Criminal Law extant will enable the 
 reader to gather the law as to arrests without ar warrant, 
 either by an officer or by a priyate person. It will be 
 found from them generally — 
 
 1st. That an arrest may be made without process by an 
 officer for any criminal offense committed or threatened 
 within his view :
 
 X INTJIODUCTION. 
 
 2d. By an officer ivithout process on information bearing 
 the impress of trutli, that 2i felony lias been committed, or 
 tliat a breach of the peace is imminent ; or 
 
 3d. By a private person when a felony has in fact been 
 committed."^' 
 
 A considerable part of the contents of this volume is 
 based on the New York statutory provisions bearing on the 
 arrest and examination of offenders, including the recent 
 Code of Criminal Procedure, referred to herein for brevity's 
 sake simply as the " Code," but such portions are applica- 
 ble or adjustable to the other States, with some modifica- 
 tions, that can readily be made with the aid of their 
 statutes. 
 
 It Avas said by a celebrated historian!- that " in no part 
 of history can any event be truly understood without refer- 
 ence to the events which went before it and which prepared 
 the way for it." This observation has special applicability 
 to the law, seldom of an isolated or exclusive character, but 
 peculiarly dependent on preceding enactments or customs 
 for a correct interpretation and thorough mastering of its 
 scope. The judicial system is a growth which requires for 
 its comprehension not alone an examination of that part 
 exposed to view, but also a study of the roots, the seed and 
 even the soils from which it issued. These conceptions 
 induced a somewhat extended treatment of various heads 
 contained in this work. 
 
 It was many centuries before there was developed, in 
 obedience to a diffused intelligence to be ascribed to that 
 great civilizer, the art of printing, a hearing partaking of 
 the essence of what is known to us as a legal trial free 
 from the dictation of a superstition which pervaded every- 
 thing, and during this period of gestation the proceedings 
 commonly surrounding the trial of the present day were 
 unknown. 
 
 -- See New York Crimiual Code, pp. 50-54 (L. 1881). 
 
 f Freeman's History of the Norman Conquest of England, vOl. 1, p. 2.
 
 INTKODUCTION. . XI 
 
 Whatever preceding or subsequent steps are now 
 necessary or may be resorted to, were devised after 
 the main hearing reached that state of advancement which 
 suggested those accompanying measures now regarded as 
 indispensable. The hearing preliminary to the trial, 
 through which the defendant on establishing his innocence 
 could be discharged, now provided for in all civilized coun- 
 tries, is the creation of quite modern times. 
 
 In order to comjjrehend the nature of an examination it 
 is quite as important to consider the legal procedure, when 
 it was not in existence, as to follow the history of its 
 growth. 
 
 It will therefore be attempted, prior to presenting exist- 
 ing recognized proceedings, to touch on anterior conditions 
 out of which present forms were evolved.
 
 LODGING THE COMPLAINT. 
 
 Chapter I. The Origin of Public Prosecutions. 
 
 II. The Complainant. 
 
 III. Where Complaint to be made, 
 
 lY. To whom to apply for Warrant. 
 
 V. The Complaint. 
 
 CHAPTER I. 
 
 ORIGIN OF PUBLIC PROSECUTIONS. 
 
 Section 1. 
 
 Self-help. 
 
 
 2. 
 
 Vengeance and Feud. 
 
 
 3. 
 
 Crime, originally a Private Oifense 
 
 only, 
 
 4. 
 
 Composition. 
 
 
 5. 
 
 Aj)peals. 
 
 a. Compurgation. 
 
 h. Ordeal. 
 
 c. Wager of Battle. 
 
 
 6. 
 
 Indictment. 
 
 
 7. 
 
 Roman Law. 
 
 
 8. 
 
 Colonial Law. 
 
 
 § 1. Self-help. 
 
 There has always been, with people in a rude state of 
 civilization, an indisposition to forego an impulse that 
 seems to have been universal to seek in person immediate 
 redress for real or imaginary grievances.
 
 A wild spirit of freedom reluctantly and doggedly submits 
 to forms of law Avliicli hamper natural unrestrained 
 
 liberty. 
 
 No doubt a condition of things existed with all races in 
 a barbarous state as was found among the most primitive 
 period of German society when, " through the doctrine of 
 self-help, the individual himself exercised active judicial 
 powers," and the punishment of crimes lay without the 
 jurisdiction of courts, which did not indeed exist.* 
 
 " The xirchaic German procedure," as Siegel has said,t 
 " is essentially and radically characterized by the absolute 
 independence (as opposed by the judicial power) by which 
 the individual enforces his rights." He " was the protector 
 of his own rights by whatever power he possessed, and was 
 in the same manner the avenger of his wa-ongs " — a state of 
 society similar to that found among the North American 
 Indians — and may safely be said to have characterized the 
 infancy of all nations. 
 
 § 2. Vengeance and Feud. 
 
 From the doctrine of self-help arose what was termed 
 vengeance and thereout — what seems to have been regarded 
 as a duty on the part of the relatives and friends of the 
 person wronged, to resent his injury and take part in his 
 quarrel. His adversary was similarly supported. How- 
 ever questionable the conduct of the self-styled avenger, 
 " he found kinsmen and associates to maintain his cause. 
 The redress which the one party demanded, the other 
 thought pusillanimous to grant. Violence was resorted to, 
 retaliation followed, and a civil or rather domestic war 
 ensued," called & feud. + 
 
 As government grew up and became recognized ven- 
 geance was placed under its surveillance. If resort was had 
 
 *The Anglo-Saxon Legal Procedure, by J. L. Laughlin, in "Anglo- 
 Saxon Law," p. 262. 
 
 f Geschichte des deut. Gerichtsverf . , p. 51. 
 i Cf. Allen, p. 101.
 
 to it, it was necessary to obtain permission from the court, 
 or thereafter justify before the same tribunal. 
 
 While vengeance thus became an appendage to the laAv, 
 the feud was outside the law and in bold opposition to it. 
 The feud which was chronicled by Tacitus held its position 
 ■even in England long after the conquest.* 
 
 § 3, Crime originally a Private Offense only. 
 
 Crime was not originally regarded as an oifense against 
 society : there existed no liability to the state, but to the 
 injured party. All that the state professed to do was to 
 provide some definite process by which the injured party 
 could assert his rights. Bodily punishment, exce23t for the 
 slave, was unknown. The prosecution was not by the 
 state but by the individual, and in the nature of a civil pro- 
 ceeding for damages. The subsequent and present distinc- 
 tion between civil and criminal law was unknoTvn.i" 
 
 § 4. Composition. 
 
 In the rude courts that were organized the matter at 
 stake was " simply money or money's worth," and the 
 principles of procuring compensation were therein settled 
 whereby to console the plaintiff for the injuries received. 
 
 The system of composition prevailing was even extended 
 over cases of killing, and a payment of a compensation by 
 the accused was the recognized penalty attaching to the 
 charge made. The theory of money satisfaction, as it 
 became accepted, was the great step towards the limitation 
 of vengeance and the consequent feuds. 
 
 § 5. Appeals. 
 
 An appeal was the name applied to a formal accusation 
 made by some private person against another of having 
 
 * Dugdale Baronage, 1, 138, 362, 365 ; Vide Allen, pp. 123, 124. 
 f Superstition and Force, by Lea, pages 15, 99, and 100.
 
 committed some heinous crime,* and being the only judicial 
 proceeding against criminals recognized for many centuries. 
 It was commenced against the accused to compel him to 
 clear himself of the charge, and it might be brought within 
 a year and a day by the injured party or his kin, and was 
 for damages. 
 
 Anciently appeals lay for treason as well as for felonies, 
 but appeals for treason were long since abolished by 
 statutes, 5 Edward III., c. 9 ; 25 Edward III., c. 24, and 1 
 Henry IV., c. 14, and for all other crimes quite recently by 
 the statute, 59 George III., c. 46.t 
 
 a. Compurgoiion. 
 
 The defendant could escape the penalty of the offense 
 charged by the aid of compurgators or fellow-swearers, 
 persons who appeared to join to the oath of an accused 
 party their own oaths to their belief in his innocence. 
 To this practice of purgation has been referred the 
 origin of jury trials. The compurgators resembled, in 
 some respects, the laudatores of the Roman law, who 
 were produced to show the improbability that a person 
 so supported in his adversity by his friends could have 
 been guilty of the crime imputed to him. Like wit- 
 nesses to character of the present day. The system of com- 
 purgation was in use amongst all the various nations of 
 the Teutonic family. The number of compurgators varied 
 according to the nature of the charge and other circum- 
 stances. 'j: 
 
 The trial by compurgators, was an allowable mode of 
 disproving accusations of crime until the Assize of Claren- 
 don (1166), re-enacted at Northampton (1176). From that 
 time the accused, upon ^presentment by an inquest, must 
 undergo the ordeal if he would establish his innocence.§ 
 
 * 4 Blackstone's Com., 312. 
 
 f 1 vol., Bouvier's Law Diet., p. 127. 
 
 X Forsyth's Trial by Jury, pp. 62 and 63. 
 
 § Placita Anglo-Xormannica, Bigelow, p. xviii.
 
 Under tlie name of wager of law, the trial by compurgators 
 
 was abrogated in England in 1833. 
 
 h. Ordeal. 
 
 The ordeal was also open to the prisoner. It was a 
 ceremony of various kinds, usually by fire or water, designed 
 to determine the guilt or innocence by a supposed refer- 
 ence to the judgment of God — in this respect like the trial 
 by battle now to be referred to. 
 
 The ordeal was abolished in the early part of the thir- 
 teenth century, during the reign of Henry III. (1219), by 
 the Lateran Council, in November, 1215.* 
 
 c. Wager of Battle. 
 
 The person appealed, i. e. accused of crime, could under 
 certain circumstances wage his battle, a practice introduced 
 in England by the Normans, under which the defendant in 
 doubtful cases might challenge his accuser to mortal 
 combat. 
 
 To such an extent did the right to challenge to combat 
 prevail that a suitor could challenge an adverse witness. 
 The position of the judge was little better: a disappointed 
 pleader could challenge the Court itself, which for many 
 years was in fact the only mode of reversing a judgment. 
 
 The right of trial by battle was claimed the last time in 
 England in 1818,t though it became obsolete for centuries 
 before, and was abolished by statute in the following year, 
 but prior thereto in this state, on, February 6, 1786, by an 
 act reciting that " the barbarous custom hath deservedly 
 fallen into disuse." 
 
 § 6. Indictment. 
 
 It became necessary soon after the conquest to guard 
 against the immunity offenders would find when parties 
 might be fearful or unwilling to make themselves con- 
 
 * 1 Stubb's Const. His., 619. f 1 Bain. & Aid., 405.
 
 6 
 
 spicuous as accusers, and incur the danger of a challenge 
 to single battle. 
 
 To meet this contingency, liable at any time to arise, it 
 was enacted in a. d. 1164 that, where a person was sus- 
 pected whom no one dared openly to accuse, the sheriff, on 
 the requisition of the bishop, should swear twelve men of 
 the neighborhood or vill, in the presence of the bishop, 
 and these were to declare the truth thereof in the nature 
 of an indictment, according to their conscience — a body 
 with functions therefore similar to our Grand Jury. 
 
 It seems, however, to have been the common practice, 
 before the statute of 3 Hen. 7, c. 1, to defer the prosecution 
 on the indictment until the appeal (which continued) could 
 be determined. If the trial on the indictment preceded the 
 bringing of the appeal, and the defendant was acquitted, by 
 a law passed in 1486 he was held in prison or on bail until 
 the time for prosecuting the appeal (a year and a day) by 
 the widow or next of kin — limited by law — had expired.* 
 
 After the year 1487 the usual mode of proceeding was 
 by indictment, and the trial by jury had at about the same 
 time developed into substantially what it is to-day.t 
 
 It is not designed in this work to treat of indictments. 
 Reference to them is made because they were at one time 
 the usual instruments whereby an accused person was 
 called on to answer, and the recognized embodiment of a 
 complaint which has obtained a separate existence. A com- 
 plaint made to a magistrate is now the common and usual 
 step to take when arrest is sought to be made by process, 
 and the initiation of proceedings by a Grand Jury unusual, 
 even exceptional. 
 
 The indictment is ordinarily found after a prior hearing 
 and determination by judicial officers authorized thereto, 
 and is an act in the system of acts through whicli the 
 higher criminal proceedings must pass, or which an 
 accused in other cases has the right to insist on ere fur- 
 ther action is taken against him. 
 
 * 3 Hen. VII., cap. 1. f Forsyth's Trial by Jury, p. 131.
 
 The Grand Jury does not now, as formerly, initiata pro- 
 ceeding, bnt will generally content itself with reviewing 
 cases originated elsewhere, and by law thereafter submitted 
 to it for approval prior to being sent to trial. 
 
 Should a Grand Jury proceed in the first instance and 
 indict, the accused will be without the privilege of an 
 examination, secured to him in all other cases. 
 
 Grand Juries, therefore, will properly reluctantly enter- 
 tain charges, but will refer complainants to a magistrate in 
 order that the accused may not be deprived of the aid of 
 an examination. 
 
 It may well be questioned whether it ought to be in 
 the power of any person or body to cause a person to be 
 put on trial without a previous hearing. 
 
 The " origin" of the Grand Jury " in England," wrote an 
 eminent criminal lawyer," " was at a time when the conflicts 
 between the powe'r of the government on the one hand, and 
 the rights of the subject on the other, were fierce and 
 unremitting ; and it was wrung from the hands of the 
 crown as the only means by which the subject, appealing 
 to the judgment of his peers under the immunity of 
 secrecy and irresponsibility for their acts, could be rend- 
 ered secure against oppression. Happily, in our country, 
 no illustration of its value in this respect has been fur- 
 nished." 
 
 We have just seen that the germ of the Grand Jury 
 system is traceable likewise to a scheme designed to 
 counteract the evils arising from a state of affairs which 
 has long since ceased to exist, i. e., the right of an accused 
 person to challenge his accuser to single combat. 
 
 Since the exigencies which gave rise to the Grand Jury 
 system are now no longer in being, the question of its utility 
 will sooner or later be thoroughly agitated. From its 
 nature it contains seA^eral elements of danger to public and 
 private liberty. Its deliberations are one-sided — the 
 
 * David Graham, in a note written for the proposed criminal code for 
 the State of New York (1850), pp. llo-l'29.
 
 8 
 
 accused not being afforded an opportunity of explaining or 
 defending liimself against the cliarge. It is a secret body, 
 shut out from public scrutiny, beyond the reach of law, and 
 mio-ht be used as a powerful weapon in the hands of an 
 unscrupulous district attorney. 
 
 On the question of bail, as the evidence before the Grand 
 Jury is not written and cannot be disclosed, the proper dis- 
 cretion and control cannot be exercised that can be applied 
 to action taken by magistrates." 
 
 Does it not seem a senseless proceeding to compel the 
 attendance of the witnesses for the prosecution before a 
 Grand Jury for the purpose of enabling it to give, at best, 
 but a partial hearing after a full examination has been 
 had before the committing magistrate, where the accused 
 was present with his counsel to defend, or confessing his 
 guilt ? 
 
 With the circumstances no longer existing that suggested 
 the Grand Jury system, the injustice that may be done to 
 one sent to trial without a preliminary hearing by cutting 
 off through indictment what elsewhere is a right, the 
 inability justly to determine the question of bail (by reason ' 
 of the evidence on which the indictment is found being 
 inaccessible), the inconvenience to which the prosecution 
 may be put in attending before a Grand Jury after a case 
 has been fully ventilated, usually a mere matter of form, 
 unless preservable by proper legislation, the Grand Jury 
 is destined to take a place among other judicial contrivances 
 deservedly obsolete. 
 
 § 7. Roman Law. 
 
 In strange contrast with the English laws, in the eye of 
 the Roman law no one was so much as accused until the accu- 
 sation had been made in writing accordinec to legal form,t 
 and the trial was had to determine the guilt or innocence 
 of the defendant, while until within a few centuries ago the 
 
 * Territory vs. Benoit, 1 Martins' Rep., 142. 
 t Pike's Hist, of Crime, Vol. I., p. 17.
 
 9 
 
 trial outside of the domains of Eome was a 23rivilege 
 whereby an accused person, akeady condemned simply 
 because a charge was made against him, might clear him- 
 self. 
 
 § 8. Colonial Law. 
 
 The laws in existence in England were either expressly 
 extended to the Colonies by Parliament or the royal 
 authority, or adopted by the Provincial assemblies, either 
 by special eliactments or practically by long use acquiring 
 the force of law. The Colonists claimed the benefits of 
 the laws recognized in England as the " birthright of the 
 inhabitants," but against this the general opinion with the 
 lawyers in England seems to have been to the effect that 
 the Provinces could avail themselves only of such privileges 
 as were expressly granted by the mother country, or to 
 which the latter gave its assent, the authorities thereof 
 always claiming, and at times exercising, a veto power 
 over the legislation of the Colonists.
 
 10 
 
 CHAPTER II. 
 
 COMPLAINANT. 
 
 Section 9. Who is the Complainant. 
 
 10. Wlio may be. 
 
 a. Infamous Persons. 
 
 h. Deficient Understanding. 
 
 c. Hnsband and Wife. 
 
 11. When Corroborative Proof is Necessary. 
 
 a. Perjury or Subornation of. 
 
 5. Seduction under Promise of Marriage. 
 
 c. Abduction for Prostitution. 
 
 d. Treason. 
 
 e. Accomplices. 
 
 12. Liability of Complainant. 
 
 § 9. Who is the Gomplainant. 
 
 Strictly speaking, the people complain, and the action is 
 so entitled,* and all sworn for the prosecution are mere wit- 
 nesses. It is usual, however, to call some one or more per- 
 sons participating in the prosecution the complainant, 
 but the person so characterized is not designated as is the 
 plaintiff in a civil suit. The party instAtuiing the charge 
 must be ascertained to determine who is the complainant. 
 The Code uses the names " informant or prosecutor."t 
 
 Whoever may have a special interest or duty in bringing 
 an offender to justice is usually the complainant ; such as 
 
 * Code, § 6. f § 148.
 
 11 
 
 the person who has been assaulted, he whose property has 
 been stolen, or, in certain cases, the officer making the arrest. 
 To discover definitely who is the complainant is important, 
 in order to fix the responsibility for a prosecution should 
 the accused party choose to seek redress at law for injuries 
 thereby sustained. 
 
 §10. JlHio may he a CompJahumt. 
 
 The statutes are silent on the question of the qualifica- 
 tions of complainant. If the evidence of the complainant 
 is not essential to the prosecution, but is supplied by 
 others produced or producible by him, then there can be 
 no question as to his right to the ear of the court. If 
 otherwise, the administration of the oath to him, which is 
 the first duty imposed on the magistrate, presupposes that 
 the person to become at once a witness is qualified to be 
 such.* 
 
 The statute is as follows : 
 
 " Whenever complaint shall be made, etc., it shall be the 
 duty of the magistrate to examine on oath the complainant."t 
 
 The Code reads thus : 
 
 " When an information is laid, etc., the magistrate must 
 examine on oath the informant or prosecutor." % 
 
 It was held, however, in one case that the statute i§ gen- 
 eral and contemplated a complaint on oath by any person 
 competent to make an oath in legal proceedings or to make 
 an affidavit, and does not require the person to be qualified 
 to be a witness.§ 
 
 Where an oath is not deemed essential as foundation for 
 the issuing of a warrant, the court held that a warrant 
 issued on the complaint under oath of an incompetent 
 witness was good.ii 
 
 * Vol. 1, Bishop's Crim. Proc, § 232. 
 f R. S., Part iv., chap, ii., title ii , § 2. 
 X % 148. 
 
 § People vs. Crandon, 17 Hun, p. 490. 
 
 II South Carolina State vs. Killet, 2 Bailey, 289 ; U. S. m. Burr, Burr's 
 Trial, Phila. ed., 11, lo.
 
 12 
 
 a. Infamous Persons. 
 
 Persons made infamous bj being adjudged guiltj of cer- 
 tain crimes are excluded from testifying. This is put on the 
 ground of their insensibility to the obligation of an oath.* 
 
 Under the general provision of the New York Code of 
 Civil Procedure, by which a conviction for crime is not to 
 exclude a witness from testifying but simply to be admis- 
 sible to affect the weight of the testimony of such witness, 
 any disability heretofore attaching to felons on that score 
 is removed. t 
 
 A witness is pres-umed to be competent. To sustain an 
 objection to a witness on the ground of infamy, the record 
 of his conviction must be produced. | 
 
 A conviction of an infamous offense in another state does 
 not disqualify the party as a witness.§ 
 
 h. Deficient Understanding. 
 
 While the deficiency of understanding exists, the person 
 so lacking mental capacity is not admissable to be sworn 
 as a witness. But if the cause be temporary, and a lucid 
 interval should occur, or a cure be effected, the competency 
 also is restored. || 
 
 Children of the age of fourteen are presumed to have 
 common discretion, but under that age it is not so presumed. 
 Therefore inquiry is made as to the degree of understand- 
 ing which the child offered as a witness may possess ; and 
 if he appears to have sufficient natural intelligence, and to 
 have been so instructed as to comprehend the nature and 
 effect of an oath, he is admitted to testify whatever his age 
 may be. Evidence of children even of the age of five years 
 has been admitted. IF 
 
 * Vol. 1., Greenl. on Evi., § 372. 
 
 t § 832, N. Y. Code of Civil Procedure ; People vs. Perry, vol. 8, N. Y, 
 Weekly Dig. , p. 445. 
 
 X Elverson vs. Vanderpoel, 69 X. Y., 610. 
 § Sims vs. Sims, 75 X.Y., 466 ; 77 N. Y., 400. 
 I Vol. I., Greenl. on Evi., § 365. 
 T Id., § 367.
 
 13 
 
 c. Husband and Wife. 
 
 Neither the husband or wife is competent or compellable 
 to give evidence for or against the other in any criminal 
 action or proceeding (except to prove the fact of marriage 
 in case of bigamy). This common law disability has not 
 been removed from criminal proceedings, either by the 
 special statute (LaAvs of N. Y., 1867, chap. 887,) enabling 
 husband and wife to be witnesses for or against each other, 
 or by the new N. T. Code of Civil Procedure. * 
 
 But there are certain exceptions to this rule allowed 
 from the necessity of the case, partly for the protection of 
 the wife in her life and liberty, and partly for the sake of 
 public justice. t In prosecutions for violence committed, 
 in which cases the wife may therefore be a witness against 
 the husband to prove injury to her person, she may 
 likewise be a witness for him to disprove such injury. | 
 
 As to other matter relating to this head, see title " Wit- 
 nesses for Complainant" (§ 30); and as to evidence generally, 
 that subject being outside of the plan of this treatise, 
 Greenleaf and Phillips, with the aid of subsequent statutes, 
 will furnish the needed information. 
 
 § 11. When Cor/oborative Proof is Necessary. 
 
 a. Perjury or Subornation of. 
 
 When the charge to be made is perjury, or subornation 
 of perjury, the complainant should come prepared with 
 evidence or indicate testimony that will be forthcoming on 
 subpoena to be served, to sustain the chief witness to the 
 accusation ; for rarely, if ever, can a conviction be had in 
 this class of cases, on the uncorroborated evidence of one 
 witness. 
 
 6. Seduction under Promise of Marriage. 
 
 Should the complaint to be preferred be seduction under 
 promise of marriage, such corroboration is indispensable. 
 
 * §828; People rs. Crandon 17 Hun, p. 490. 
 
 f Vol. 1, Greenl. on Evi., § 348. 
 
 X State m. Neill, 6 Ala. Rep. , 685 ; People vs. Fitzpatrick, 5 Park C. R. . p. 26.
 
 u 
 
 The evidence of tlie female seduced standing alone is in- 
 sufficient to condemn.* 
 
 c. Abduction for Prostitution. 
 Under the N. Y. Laws no conviction shall be had for 
 enveigling or enticing or taking away any unmarried female 
 of previous chaste character, under the age of twenty-five 
 years, for the purpose of prostitution, or for assisting 
 thereat, on the testimony of the female so enveigled or en- 
 ticed away, unsupported by other evidence.! 
 
 d. Treason. 
 Since two lawful witnesses to the same overt act in a 
 case of treason, or one witness to one overt act, and another 
 witness to a different overt act to the same treason, are 
 necessary before conviction, the magistrate will secure this 
 requisite proof before issuing a warrant. :|: 
 
 e. Accomplices. * 
 
 "While the uncorroborated statements of an accomplice 
 may not be rejected absolutely, since a jury may convict on 
 his evidence alone, still it is a rule to require corrobora- 
 tion, which rule though is one of practice and not of law. § 
 
 § 12. Liahility of Complainant. 
 
 At the time when an accusation imposed on the j)erson 
 charged with crime the burden of proving his innocence, 
 and that commonly either by imperiling his life in single 
 combat, or by passing safely through ceremonies calcu- 
 lated in the absence of fraud to be possible only through 
 suj^ernatural agencies, the position of a defendant in a crim- 
 inal case was one surrounded with the most serious 
 consequences. Naturally, therefore, on him w^ho had it in 
 his power to put his fellow-man in such great danger, there 
 were placed grave penalties. 
 
 * Laws of 1848, ch. 111. ~ 
 
 t L. 1848, ch. 105. 
 
 X R. S., Part iv., chap, ii., title v., § 15, 4 X. Y. S. C. R. (T. & C), 472. 
 § Lindsay m. People, 63 N. Y., 143.
 
 15 
 
 The fact that a complainant was at all times liable to be 
 challenged to fight, operated as a great check against wan- 
 ton or unjust charges. If the prosecution when challenged 
 " became recreant, that is a crying coward or craven," the 
 appellee (defendant) not onl}^ recovered his damages, b^it 
 could also, as it seems, plead his acquittal in bar of a sub- 
 sequent indictment or appeal.* 
 
 In the thirteenth century, the English law provided for 
 the imprisonment of a vanquished appellant (complainant) 
 in capital cases as a calumniator,* while the defendant, if 
 defeated, was executed and his property confiscated. The 
 same distinction is to be found in the contemporary custom 
 of Normandy, but mediasval legislation, however, was not 
 usually so lenient to a worsted appellant. It was widely 
 current during the middle ages that the man who brought 
 a false charge was adjudged the penalty which was 
 incurred by the defendant if convicted.f 
 
 At present the burden of proof being on the jDrosecu- 
 tion, having been shifted there from the shoulders of the 
 accused, and the character of the hearing and trial 
 calculated to demonstrate innocence, the situation of a 
 defendant is quite relieved from apprehension, and re- 
 quires at the hands of an accuser a much milder penalty 
 than formerly. It is now deemed unnecessary to impose a 
 liability on a complainant, except that arising out of a per- 
 missible civil suit for damages. If the prisoner is unlaw- 
 fully detained, the accuser may be pu^'sued in an action for 
 a false imprisonment. If the proceedings were prompted 
 from malice, and there was a want of probable cause, a 
 liability will be enforced in a suit for malicious prosecu- 
 tion.:}: But such latter suit cannot be commenced by a 
 plaintiff until the prosecution against him is terminated in 
 his acquittal. § 
 
 * 2 Hawk., PI. C, p. GOO; Id. 601. 
 
 t Stat. WestM. 2, ISth ed. 1, c. 13, vol. 1. 
 
 :{: Brown ®s. Chadsey, 39 Barb., 253; Secor vs. Babcock, 2 Johns., 203. 
 
 § McCormick vs. Si.sson, 7 Cow., 715; Mills vs. McCoy, 4 Cow., 406; 
 Burt vs. Place, 4 Wend., 591 ; Gorton vs. De Angelis, 6 Wend., 418 ; Clark 
 «s. Cleveland, 6 Hill, 344 : Bacon vs. Townsend, 6 Barb., 426.
 
 16 
 
 The complainant is not liable for the issuance of a war- 
 rant unless he directs it, or sanctions it, or interferes in the 
 arrest.* 
 
 If a warrant is void, the delivery of it and the direction 
 to arrest by a complainant makes him liable for false im- 
 prisonment.! 
 
 And a complainant is not answerable if a justice make a 
 mistake in determining the question whether a crime had 
 been committed, and whether there was probable cause to 
 believe the person charged to be the one who committed it. J 
 
 The penalty for perjury, of course, is incurred if com- 
 mitted by any person at any stage of the proceedings. 
 
 * Payne v. Barnes, 5 Barb. , 468. 
 f Lewis V. Rose, 6 Lansing, 206. 
 
 t lb. ; see Waldheiin v. Sickel, 1 Hilt., 45 ; 39 Barb. 253, 56; 13 Abb., 
 276; 37 Barb., 159; 5 Park, 185; 38 Barb., 339; 17 Abb., 237.
 
 17 
 
 CHAPTEK III. 
 
 WHEKE COMPLAINT TO BE MADE. 
 
 Section 13. Common Law. 
 
 14. Constitution of the United States. 
 
 15. The Doctrine in the States. 
 
 a. New York State. 
 
 16. Particular Cases. 
 
 a. New York State. 
 
 17. Inferior Districts. 
 
 § 13. Common Laio. 
 
 There is no constitutional or legislative provision declar- 
 ing in terms where a complaint is to be made, but suffi- 
 cient material exists from which to adduce the needed 
 information. 
 
 The common law points out the locality in which the 
 prosecution iov crimes can be carried on by prescribing, "it 
 must be in the county of their commission, and if a county 
 is divided, a criminal act done before its division in the 
 part which is created a new county, must be prosecuted in 
 the new. The offense is against the state ; the trial in the 
 county." " 
 
 But the complaint is a part of the prosecution, therefore 
 in the absence of any provision otherwise directing the 
 prosecution of offenders, the principle of the common law 
 will prevail, and the place wherein to prefer the comj)laint 
 will be where the offense was committed. 
 
 In the application of the general common law rule diffi- 
 culties were encountered, and some removed by the English 
 
 * Bishop's Criminal Procedure, Vol. 1, §§ 47 and 49. 
 3
 
 18 
 
 statute 2 and 3 Edw. YI., c. 24, § 2 (wliicli is common law in 
 this country),* in the cases where death from felonious 
 assault and battery and poisoning occurred in a different 
 county from that in which the act was committed. By this 
 statute the indictment if found in the county where the 
 death shall take place will be good and effectual. 
 
 § 14 Constitution of the United States. 
 
 The place of trial being of great importance to an 
 accused person, as seriously affecting his interest, it was 
 deemed proper to insert a proyision on the subject in the 
 organic law of the land, in which the principle of the common 
 law is recognized. 
 
 The constitution of the United States proyides that " the 
 trial of all crimes, except in cases of impeachment, shall be 
 by jury ; and such trial shall be held in the state where the 
 said crimes shall have been committed ; but when not com- 
 mitted within any state, the trial shall be at such place or 
 places as the Congress may by law clirect.f And in an 
 amendment thereto, "In all criminal prosecutions, the 
 accused shall enjoy the right to a speedy and public 
 trial, by an impartial jury of the state and district wherein 
 the crime shall have been committed, which district shall 
 haye been previously ascertained by law.":}: 
 
 It will be observed that the place of trial is confined by 
 the amendment to narrower limits. 
 
 § 15. The Doctrine in the States. 
 
 The doctrine that " the verification of crimes shall be in 
 the vicinity where they happen," is secured in some states 
 by constitutional provisions, and in others by legislative 
 enactments, and is indicative of the locality of initiating 
 criminal proceedings. 
 
 * The state vs. Moore, 6 Fost., N. H., 448 ; Riley vs. The State, 9 Humph., 
 646. 
 
 f Const. U. S., art. 3, § 2, cl. 3. 
 
 X Const. U. S., Amend., art. 6 ; U. S. vs. Britton, 2 Mason, 464.
 
 19 
 
 a. New Yorlc State. 
 
 Besides the couclusion to be taken from the common 
 law, the theory of which, as we have seen, is adopted by 
 the United States Constitution and the constitutions or 
 statutes in the several states as to the place wherein to 
 originate criminal proceedings by a complaint to a magis- 
 trate, we find in this state several enactments relating to 
 indictments and trial further suggesting the locality where- 
 in to submit a complaint, thus : 
 
 Each court of oyer and terminer shall have power : 
 
 1. To inquire, by the oath of good and lawful men of the 
 same countv, of all crimes and misdemeanors, committed 
 or triable in such county.* 
 
 Every court of sessions shall have power : 
 
 1. To inquire, by the oaths of good and lawful men of 
 the county, of all crimes and misdemeanors committed or 
 triable in such county. t 
 
 And all issues of fact joined upon any indictment shall 
 be tried by a jury in the county where such indictment 
 was found ; unless, for sj)ecial causes, the supreme court 
 shall order an indictment removed into that court to be 
 tried in some other county.:}: 
 
 § 16. Farticidar Cases. 
 
 As has been heretofore conveyed, in endeavoring to de- 
 termine the place wherein to lodge a com^^laint by the 
 guide laid down, — i. e, where was the offense committed ? — 
 cases arise which do not yield a ready response to this 
 question. Whence grows this difficulty ? 
 
 " The locality of the crime is not necessarily in law, or 
 always in fact, in the same county with the personal presence 
 of him who commits it. * * * The intent follows and 
 dwells with the act, and this may be where the bodily 
 
 * R. S., Part iii., chap, i., title iv., § 39. 
 
 fib., §5, titles. 
 
 X lb., Part, iv., chap, ii., title v., § 1.
 
 20 
 
 presence is not. Thus, if a man stands upon shore within a 
 county, and by discharging fire-arms kills another upon the 
 high seas without the county, he is triable for the murder 
 by the admiralty which has jurisdiction over the locality 
 where the ball took effect, and not over the place where he 
 stood to perpetrate the crime.* And one who poisons 
 another by the help of an innocent agent is guilty of the 
 murder in the county where the poisoning took place, t 
 So a person who puts forth a libel ; ]: or a threatening let- 
 ter ;§ or a letter inclosing a forged instrument intended 
 to defraud the one to whom it is addressed ; II or a letter 
 making a false pretense to a person who thereupon parts 
 with his goods in the county where he receives it ; IT or 
 solicits one to commit a crime, ** may be indicted in the 
 county to which it is sent, though he does not go there 
 himself. ***** And one who criminally 
 neglects to do any act, as to surrender to a fiat in bank- 
 ruptcy, tt or repair a highway, Xt is answerable for the 
 neglect in the county where the act ought to have been 
 done, and in no other." §§ 
 
 Other questions on this subject have arisen, which have 
 been ably considered by eminent commentators, to whose 
 works the reader is referred. |||| 
 
 . *Rex vs. Combes, 1 Leach, 4th ed., 388; 1 East. P. C, 367; 1 Stark. 
 Grim. PL, 2d ed., 22, 23. 
 
 f 1 Stark. Grim. PL, 2d ed., 23. 
 
 X Commonwealth vs. Blanding, 3 Pick. , 304. 
 
 § People ra. Griffin, 2 Barb., 427 ; Rex vs. Girdwood, 1 Leach, 4th ed., 
 142; 2 East. P. C, 1120 ; Esser's case, 2 East. P. C, 1125. 
 
 II People vs. Rathburn, 21 W., 509. 
 
 IReg. vs. Jones, 1 Den. C. C, 551; Temp, and M. 270; 1 Eng. L. and 
 Eq., 533 ; and see Adams vs. People, 1 Gomst., 173 ; 3 Denio, 190; Reg. vs. 
 Leech, Dears, 642 ; 7 Cox C. C, 100 ; 36 Eng. L. and Eq., 589. 
 
 ** Griffin vs. The State, 26 Ga., 493. 
 
 ff Reg. vs. Milner, 2 Car. and K., 310. 
 
 it Rex vs. Clifton, 5 T. R., 498, 502. 
 
 §§ Bishop's Grim. Procedure, vol. 1, § 53. 
 
 jlll Bishop's Criminal Procedure, vol. 1, §§54^67 inclusive; ^^'harton on 
 Criminal Law, § 210, a-y ; lb. §§ 603, 604, and 605 (7th ed.).
 
 21 
 
 a. New York State. 
 
 The Eevised Statutes of this State contain several other 
 sections found necessary either to settle mooted questions, 
 or to assist or facilitate the prosecution of criminals or in 
 arriving at a just result. 
 
 Thej are as follows : 
 
 Duelling and Prize-Fighting. 
 
 Every offender under the duelling act " may be indicted 
 and brought to trial in any county of this State, which 
 shall be designated by the Governor for that purpose, and 
 where, in his opinion, the evidence can be most conven- 
 iently obtained and produced." * 
 
 Any person who leaves this State, with intent to elude 
 any law thereof against duelling or prize-fighting, or 
 challenges thereto, or to do any act fprbidden by such law, 
 or who being a resident of this State, does an act out of it, 
 which would be punishable as a violation of such a law, 
 may be indicted and tried in any county in the State.t 
 
 Bigamy, Polygamy. 
 
 An indictment may be found against any person for 
 a second, third, or other marriage herein prohibited, in 
 the county in which such person shall be apprehended, 
 and the like proceedings, trial, judgment and conviction 
 may be had in such county, as if the offense had been com- 
 mitted therein.:!: 
 
 Certain Larcenies. 
 
 In respect to stolen goods, the offender may be indicted 
 and punished in any county where he carries the stolen 
 goods ; as he is guilty of stealing them in every place where 
 he has taken them. So if a larceny is committed abroad 
 
 * R. S., Part iv., chap. i. , title v., art. i. , § 6. 
 t Code, § 133. 
 ilb., art. ii., §10.
 
 ^ -I 
 
 and the goods are brought into this State, the offender may 
 be indicted in any county into which the goods are car- 
 ried, in the same manner as if the larceny had been origin- 
 ally committed here.* 
 
 Beceiver of Stolen Property. 
 
 In the cases where any person shall be liable to prose- 
 cution as the receiver of any personal property that shall 
 have been feloniously stolen, taken or embezzled, he may 
 be indicted, tried and convicted in any county where he 
 received or had such property, notwithstanding such theft 
 was committed in another county, t 
 
 Certain Burglaries and Bobberies. 
 
 "When property stolen in one county and brought into 
 another shall have been taken by burglary or robbery, the 
 offender may be indicted, tried and convicted for such 
 burglary or robbery, in the county into which such stolen 
 property was brought, in the same manner as if such bur- 
 glary or robbery had been committed in that county. :]: 
 
 Wounds in one County and Death in another. 
 
 When any mortal wound shall be given, or any poison 
 shall be administered, or any other means shall be em- 
 ployed, in one county, by which a human being shall be 
 killed, who shall die thereof in another county, an indict- 
 ment for such offense may be found in the county where 
 such death hapj)ened ; and the same proceedings shall be 
 had thereon in all respects, as if the means by which such 
 death was produced, had been employed and used in the 
 county Avliere such death happened.§ 
 
 * Barb. Cr. Law, p. 167, 2d Ed. 
 
 t 3 Park Cr. L , 473 ; N. Y. R. S., Part iv., chap, ii., title iv., art. ii., § 43. 
 
 i lb., §50; 2 Smith, 344; 3 Seld., 295 ; 9 Wend., 505. 
 
 § R. S. , Part iv. , chap. ii. , title iv. , art. ii. , § 47.
 
 23 
 
 Crimes Committed partly in one County and partly in 
 
 Another. 
 
 When a crime is committed partly in one county and 
 partly in another, or the acts or effects thereof constituting 
 or requisite to the consummation of the offense occur in two 
 or more counties, the jurisdiction is in either county.* 
 
 Offenses on Board Vessels, etc. 
 
 When a crime is committed in this State on board of a 
 vessel navigating a river, lake, or canal, or lying therein in 
 the course of her voyage, or in respect to any portion of the 
 cargo or lading of such boat or vessel, the jurisdiction is 
 in any county through which, or any part of which, such 
 river or canal passes, or in which such lake is situated, or 
 on which it borders, or in the county where such voyage 
 terminates, or would terminate if completed. f 
 
 Crimes Committed on Railway Trains. 
 
 When a crime is committed in this State in or on board 
 of any railway engine, train or car, making a passage or 
 trip on or over any railway in this State, or in respect to 
 any portion of the lading or freightage of any such railway 
 engine, train or car, the jurisdiction is in any county through 
 which, or any part of which, the railway train or car passes, 
 or has passed in the course of the same passage or trip, or 
 in any county where such passage or trip terminates, or 
 would terminate if completed.:}: 
 
 Nuisances. 
 
 Whenever any nuisance shall be erected or continued, on 
 or near the boundary lines of the counties of ]^ew York, 
 Westchester and Queens, the same, and the persons by 
 whom such nuisance shall have been erected or continued, 
 may be indicted in either county injuriously affected there- 
 
 * Code, § 134. 
 t lb., § 136. 
 
 t lb., § 137.
 
 24 
 
 by ; and thereupon the same proceedings shall be had and 
 taken, and the sentence of the court may be enforced in the 
 same manner, as if the said nuisance was situated within 
 the county in which the indictment was found.* 
 
 Offenses near Boimdary of a County. 
 
 When an oflfense shall be committed on the boundary 
 of two counties,t or within five hundred yards of such 
 boundary, an indictment for the same may be found, and a 
 trial and conviction thereon may be had in either of such 
 
 counties.:}: 
 
 Accessaries. 
 
 An indictment against an accessary to any felony, may 
 be found in the county where the offense of such accessary 
 shall have been committed, notwithstanding the principal 
 offense was committed in another county ; and the like 
 proceedings shall be had thereon in all respects, as if the 
 principal offense had been committed in the same county.§ 
 
 Libel. 
 
 When a crime of libel is committed by publication in any 
 paper in this State, against a person residing in the State, 
 the jurisdiction is in either the county where the paper 
 is published, or in the county where the party libeled 
 resides. * * * * 
 
 Whenever the crime of libel is committed against a per- 
 son not a resident of this State, the defendant must be 
 indicted and the trial thereof had in the county where the 
 libel is printed and published. But if the paper does not 
 upon its face purport to be printed or published in a par- 
 ticular county of this State, the defendant may be indicted 
 and the trial thereof had in any county where the paper is 
 
 * Laws 1851, ch. 415, §1. 
 
 f Two or more counties by the Code, § 135. 
 
 t R. S., Part iv. , ch. ii., title iv. art. ii., § 45. 
 
 §Ib.,§48.
 
 25 
 
 circulated. lu no case, liowever, can the defendant be 
 indicted for the printing or publication of one libel in more 
 than one county of this State.* 
 
 See New York Kevised Statutes concerning other provis- 
 ions relating to libels, as to the county wherein they may 
 be disposed of.f 
 
 JVJieii a Second Prosecution is Barred. 
 
 When an act charged as a crime is within the jurisdiction 
 of another State, territory or county, as well as within the 
 jurisdiction of this State, a conviction or acquittal thereof 
 in the former, is a bar to a prosecution or indictment there- 
 for in this State.:}: 
 
 When a crime is within the jurisdiction of two or more 
 counties in this State, a conviction or acquittal thereof in 
 one county is a bar to a prosecution or indictment therefor 
 in another. § 
 
 § 17. Inferior Districts. 
 
 Within the county or district where the oflfense has been 
 committed, there may be magistrates having jurisdiction 
 over only a part of such territory. When application for a 
 warrant is made to any such inferior officer, the complaint is 
 to be made to the officer having jurisdiction of that part 
 wherein the offense was committed. 
 
 * Code, § 138. 
 
 f Laws 1852, ch. 165, §§ 1, 2, 3 and 4 ; R. S., Part iv., chap, ii., title iv., 
 art. ii.,§§80, 81, 82 and 83. 
 X Code, § 139. 
 § Code, § 140.
 
 26 
 
 CHAPTEE IV. 
 
 TO WHOM TO APPLY FOR WARRANT. 
 
 Section 18. Witlidrawal of Judicial Powers from Executive 
 Officers. , 
 
 19. Central and Local Authority. 
 
 20. Criminal Warrants in England. 
 
 21. Warrants for Criminal Offenses against the 
 
 United States, by whom issued. 
 
 22. New York State. 
 
 23. Questions of Jurisdiction. 
 
 24. Neglect of duty by Magistrate. 
 
 §118. Withdrawal of Judicial Poioei^s from Executive Officers. 
 
 In the earlier periods the administration of laws is in the 
 executive, which then is usually the sole constituent of the 
 government, and this continues to be the characteristic of 
 every nation whose advance beyond semi-barbarism is 
 arrested, or whenever, from a state of partial civilization it 
 returns again to its original rude condition. 
 
 Such was the primitive administration of laws in the 
 States of Greece ; the king or chief of a people was not 
 merely a military leader, but also a judge ; the Roman con- 
 suls were at first executive and judicial officers, and in 
 France the suzerains or feudal lords in person originally 
 exercised, in addition to their other duties, judicial powers ; 
 and this is now the case in oriental autocracies, with only 
 the modification that where the territorial jurisdiction is 
 large, as in Turkey or Persia, the laws are administered by 
 deputies, but who, in like manner as the sovereign of a 
 small state, each within his respective district, performs 
 the functions of executive and judicial officers.
 
 27 
 
 Tlie separation of the judicial from executive functions 
 has become gradually recognized as a political principle,* 
 and each is regarded as a separate department, and 
 together with the legislative, form the three component 
 branches of our government. 
 
 § 19. Central and Local Authority. 
 
 In England great hostility has in the past been exhibited 
 towards " the authority of the Crown in the higher criminal 
 jurisdiction. The extortions of the judges were at one time 
 regarded as a greater evil than the perpetration of crime in 
 any degree." 
 
 "Local obstruction held its ground against central 
 authority, until the King's Justices were excluded fi'om 
 every county for seven years at a time." 
 
 The Justices in Eyre, traveling as Circuit Justices, dealt 
 mainly with the higher offenses, and local magnates 
 disposed of the lesser infractions. The inferior courts were 
 various, embracing the Hundred Court, Manorial Court 
 and Shire Court. 
 
 In the eleventh century, during the reign of Edward the 
 Confessor, " England saw new courts of law spring up, 
 endowed by royal favor or by prescriptive use, with judicial 
 functions of the most diverse nature, over territories inex- 
 tricably interwoven and confused. Justice was no longer a 
 public trust, but a private property." 
 
 In the first year of the reign of Edward III. (the Confes- 
 sor), A. D. 1042, good and lawful men in each county were 
 appointed to keep and maintain the peace. Our modern 
 Justices of the Peace seem to have been developed out of 
 these ancient guardians. 
 
 § 20. Criminal Warrants in England, 
 
 A warrant may be granted in extraordinary cases by the 
 privy council, or by a secretary of state, or by either 
 house of parliament. And at common law, the chief 
 
 * American Cyclopedia, vol. 5, p. 428.
 
 28 
 
 justice or any puisne judge of the court of Queen's Bench, 
 may in his own name issue a warrant for apprehending and 
 bringing before him any person charged on oath with 
 felony or suspicion of felony. Though, to avoid trouble, such 
 a warrant may direct the person where apprehended to be 
 taken before a justice of the peace to be by him examined 
 and proceeded against according to law,* it extends all over 
 the kingdom, and is tested, or dated, " England," not " Ox- 
 fordshire," " Berks," or other particular county. 
 
 Most commonly, however, a warrant is granted by a 
 justice of the peace. 
 
 § 21. Offenses against the United States, Warrants for, by 
 
 loliom issued. 
 
 For any crime or offense against the United States, the 
 offender may, by any justice or judge of the United States, 
 or by any justice of the peace or other magistrate of any 
 of the United States where he may be found, agreeably to 
 the usual mode of process against offenders in such State 
 and at the expense of the United States, be arrested and 
 imprisoned or bailed, as the case may be for trial before 
 such Court of the United States as has cognizance of the 
 offense.t 
 
 Commissioners appointed by the Circuit Court of the 
 United States to take acknowledgments, affidavits, etc., 
 have the powers that any justice of the peace or magistrate 
 may exercise as above. ^: 
 
 From the foregoing it appears that magistrates of the 
 States have cognizance for the purposes of committing 
 to answer before United States Courts, persons charged 
 with offenses against the United States. It is usual, how- 
 ever, to refer such proceedings to the United States 
 authorities. 
 
 * Cliitty's Cr. L., 1 vol., pp. 34 & 35. 
 f U. S. Statutes at Large, vol. 1, p. 91, § 33. 
 
 t XJ. S. Statutes at Large, vol. 5, pp. 516 and 517, § 1 ; IT. S. v. Hand, 
 6 McLean, 274; U. S. Commissioner's Manual by Roe, p. 28, et seq.
 
 29 
 
 § 22. Neiu York State. 
 
 In this State the officers who may issue warrants are 
 designated by the Code," as follows : 
 
 1. Justices of the Supreme Court ; 
 
 2. Judges of any City Court ; 
 
 3. Judges of County Courts, and Special County Judge ; 
 
 4. The City Judge of the City of New York, and the 
 
 Judge of the Court of General Sessions in the City 
 and County of New York ; 
 
 5. The Justices of the Peace ; 
 
 6. The Police t and other Special Justices, appointed or 
 
 elected in a city, village, or town ; and 
 
 7. The Mayors and Recorders of cities. % 
 
 The foregoing persons have power to issue process for 
 any criminal offense committed within their jurisdiction 
 respectively. 
 
 The higher courts might, under ordinary circumstances, 
 "be justified in refusing to entertain comj^laints for warrants, 
 while inferior courts can readily be applied to. It is, at 
 least, the practice to confine application for warrants to the 
 latter. 
 
 § 23. Jurisdictional Questions. 
 
 A justice of the peace has no power to issue process for 
 a crime committed in another county, though the offender 
 be in the county where the justice resides. § 
 
 * Code, § 147. 
 
 fin the City of New York, "no alderman, district court justice, or other 
 city officer, not being a judicial officer, shall exercise any power or authority 
 appertaining to any police justice of that city." — Laws of 1873, chap. 538, 
 
 §1- 
 
 X This provision is in harmony with the political principle hereinbefore 
 referred to— the delegation of judicial duties only to judicial officers, and 
 had "mayors of cities" been omitted, it would have been fully respected 
 by the Code. 
 
 § Semble, 5 Hill, 1G4.
 
 30 
 
 The judiciary of one State lias no jurisdiction of offenses 
 committed in another State, although the offender may be 
 within the limits of its jurisdiction, except on requisition 
 to surrender to the State wherein offense has been com- 
 mitted, for trial.* 
 
 If the justice acquires jurisdiction over the subject- 
 matter and the person, he is not responsible in an action 
 for an error of judgment.'!- 
 
 A recital in a warrant for the arrest of a party, where 
 the magistrate would be guilty of a breach of his official 
 oath if the recital were intentionally false, is presumptive 
 evidence of the truth of such recital ; and it lies upon the 
 party denying the jurisdiction which depends on that fact, 
 to show that the recital is false.:]: 
 
 Where a magistrate has jurisdiction, and acts within 
 that jurisdiction, he is not liable, in an action of trespass, 
 for mere error in judgment. 
 
 If he acts from malicious or improper motives, or in bad 
 faith, in some cases he may be liable to another form of 
 action. But if he has no jurisdiction to do the act com- 
 plained of he is liable, and if that appears upon the face 
 of the papers, as a general rule, all concerned are tres- 
 passers.§ 
 
 The test of an act being judicial or ministerial is, whether 
 the justice is entitled to withhold his assent if he thinks 
 fit, or whether he can be compelled, by mandamus or rule, 
 to do the act in question. || 
 
 * People vs. Wright, 2 Cai., 213; People vs. Gardener, 2 Johns., 477; 
 People vs. Schenck, 2 Johns., 479. 
 
 f Stewart vs. Hawley, 21 W., 555 ; 1 Brod. & Bing., 432; Mills vs. Callet, 
 6 Bing., 85 ; 3 Maule & Selw., 411 ; 8 W., 462; 11 W., 95; 19 W., 61, 62. 
 
 X Bradstreet vs. Ferguson, 21 W., 640 ; Vosburgh vs. Welch, 11 Johns. R., 
 175; Wallsworth vs. McCullough, 10 Johns., R., 97 ; Payne t)«. Barnes, 5 
 Barb., 469. 
 
 § Pratt y«. Hill, 16 B., 303. 
 
 II Staverton vs. Ashburton, 4 El. and Bl., 531.
 
 31 
 
 § 24. Magistrate's Neglect of Duty. 
 
 Mere good feeling and upright intention in a magistrate 
 will be no defense if he has been guilty of a neglect of his 
 duty, nor will the fact of his having acted under the advice 
 of others be any defense for him. The question is, whether 
 he did all that he knew was in his power and which could 
 be expected from a man of ordinary prudence, firmness, 
 and activity.* 
 
 * Rex vs. Pinney, vol. 1, Neville and Mannings Mag. case, p. 307.
 
 32 
 
 CHAPTEE V. 
 
 COMPLAINT.* 
 
 The complaint herein treated of excludes all such as are 
 made to an arresting ofl&cer, to procure an arrest without 
 a warrant, or to a grand jury to cause an indictment to be 
 found, and embraces only the application for an arrest 
 when made to a magistrate. 
 
 Section 25. Oral Complaint. 
 
 26. Written Complaint. 
 
 § 25. Oral Complaint 
 
 The statute in this State speaks of applications for war- 
 rants in these words : 
 
 " Whenever complaint shall be made that a criminal 
 offense has been committed," etc.f 
 
 It does not say in what form it shall be made, nor what 
 it shall contain, neither is there any condition or restric- 
 tion attached. It may, then, be a bare verbal statement, 
 " that a criminal offense has been committed," without 
 charging any particular jDerson and based solely on informa- 
 tion received by the person preferring the complaint, desig- 
 nated, as we have seen, the complainant. 
 
 Such simple oral communication to a magistrate, how- 
 ever, sets in motion powerful and effective legal machinery, 
 which at once passes beyond the control of the informant 
 and under the direction of public officials. 
 
 It will be also observed, from the wording of the statute, 
 that the complaint need not be under oath. 
 
 The complaint may be regarded as being a mere announce- 
 ment to the court of a desire for an inquiry to determine 
 
 * Called "information" by the Code, § 145. 
 "f R. S., Part iv. , chapter ii., title ii., § 27.
 
 33 
 
 whether a warrant shall issue on the matters thereafter 
 to be presented. 
 
 Thus looked upon, it will be understood why the statute 
 so meagrely refers to the comj^laint and passes on to 
 what shall follow a complaint being made — the examination 
 by the magistrate of the comj^lainant, and any witnesses 
 who may be produced by him on oath,* the foundation 
 j)roper for the warrant. 
 
 § 26. Written Complaint. 
 
 When the formality of a written complaint is observed, it 
 is usual to embrace within it the statement of facts which 
 the magistrate would elicit by an examination of the com- 
 plainant and his witnesses, so that by adopting the evidence 
 in the complaint the magistrate need make no further 
 examination, but proceed at once to swear the witnesses and 
 issue his warrant. Since the subject of a written complaint 
 will be better understood after taking up the " preliminary 
 examination," the presentation of the remaining part of it 
 is reserved for another and later part of this book (§ 34). 
 
 In Wisconsin, the statute requires the magistrate to 
 reduce the complaint to writing, and cause the same to be 
 subscribed by the complainant.f 
 
 The statutes of Arkansas and Texas provide that " the 
 complaint shall be made in writing, and upon oath. % 
 
 * R. S., Part iv., chap, ii., title ii., § 27. 
 
 t R. S. of Wis., ch. 145, § 2; R. S. of Ohio, ch. 65, p. 538. 
 
 t R. S. of Ark, ch. 52, § 20 ; Hartley's Dig., art. 703.
 
 :p.a.:e^t ii. 
 
 EXAMINATION BEFORE WARRANT. 
 
 Chapter I. Divers Preliminary and Incidental Questions. 
 II. What is to be elicited on tlie Preliminary 
 Examination. 
 
 CHAPTEE I. 
 
 DIVERS PRELIMINARY AND INCIDENTAL QUESTIONS. 
 
 Section 27. Distingnislied from Examination after 
 Arrest. 
 
 28. Duty of tlie Magistrate to Investigate. 
 
 29. Oatii. 
 
 30. Witnesses for Complainant. 
 
 31. Fees of "Witnesses. 
 
 32. Detention of Witnesses. 
 
 33. Whether Examination to be in Writing. 
 
 34. Written Complaint. 
 
 § 27. Distingidshed from Examination after Arrest. 
 
 There are two examinations provided for before a final 
 commitment — the one, preliminary to the warrant of arrest, 
 and the other to ascertain whether the party arrested 
 should be held on the accusation made against him. When 
 the arrest is made without a warrant there is, of course, no 
 preliminary examination ; the first notice the magistrate has 
 that an ofi"ense is alleged to have been committed is by the 
 arraignment of a prisoner.
 
 35 
 
 In both examinations it must appear that an offense has 
 been committed, in that, after arrest, there shall be in ad- 
 dition probable cause to believe the prisoner to be the 
 guilty party; by the Code "reasonable ground."* 
 
 § 28. Duty of the Magistrate to Investigate. 
 
 It is not only the right but the duty of the magistrate to 
 investigate criminal accusations. 
 
 The complaint need accuse no particular person by name, 
 but it is sufficient if it be charged that a criminal offense 
 has been committed, no matter bv whom. 
 
 One of the very objects of the preliminary inquiry may 
 be to ascertain the name of the perpetrator as well as the 
 other particulars of the alleged offense. To this end wit- 
 nesses are to be produced by, that is, on the part of, the 
 complainant, who may have process therefor, and di;3obe- 
 dience may be punished as for a contempt. 
 
 The first step to be taken is to examine the complainant 
 on oath, manifestly though only if he claims to know au}'- 
 thing personally about the charge. How much, then, must 
 be proved by his examination ? Enough only to furnish 
 good grounds to believe that further investigation will lead 
 to the discovery of crime.f 
 
 §29. Oath. 
 
 The preliminary examination of the complainant and his 
 witnesses must be under oath. 
 
 An unsupported oath, except with certain class privileges, 
 was not receivable as evidence until its introduction as such 
 through the influence of the Homan law, in which its im- 
 portance was overwhelming. It required the renewal of 
 the study of the civil law in the twelfth century to give the 
 practice a position entitled to respect. | 
 
 * § 150. 
 
 f People vs. Hicks, 15 B., 158 ; Wilson vs. Robinson, G How. Pr. Rep., 110. 
 
 X Superstition and Force by Lea, 20, 21.
 
 36 
 
 Oaths were estimated by their externals and not by 
 themselves, and guarantees, such as religious ceremonies 
 and superstitious observances accompanying the oath, were 
 required. 
 
 There were also formerly various kinds of oaths, such as 
 promissory, assertory, decisory, and calumnice causa, and 
 besides these the greater and lesser oaths. 
 
 According to the laws in this State every person believing 
 in the existence of a Supreme Being, who will punish 
 false swearing, shall be admitted to be sworn, if other- 
 wise competent ; '"^ and no witness is to be incompetent 
 on account of his religious belief ; t but a witness is not 
 shielded from a cross-examination as to his religious be- 
 lief ; :',; nor are courts prevented from inquiring what are the 
 peculiar ceremonies observed by any witness in swearing.§ 
 
 The usual mode of administering oaths now practiced, by 
 the person who swears laying his hand upon and kissing 
 the Gospels, shall be observed in all cases in which an oath 
 may be administered according to law. || 
 
 Every person who shall desire it shall be permitted to 
 swear in the following form : " You do swear in the pres- 
 ence of the ever living God ;" and while so swearing such 
 p)erson may or may not hold up his hand, in his discretion.l^ 
 
 Every person who shall declare that he has conscientious 
 scruples against taking any oath or swearing in any form, 
 shall be permitted to make his solemn declaration or 
 affirmation in the following form : "You do solemnly, sin- 
 cerely and truly declai-e and affirm." '""^ 
 
 Whenever the court before which any person shall be 
 offered as a witness shall be satisfied that such person has 
 any peculiar mode of swearing connected with, or in addi- 
 
 * R. S., Part iii., ch. vii., title iii. , art. ix., §87. 
 t Const, of 1846, art. i., §3. 
 
 X Supreme Ct., 1858, Stanbro vs. Hopkins, 28 Barb., 265. 
 § R. S., Part iii., ch. vii., title iii., art. ix. , § 89. 
 II lb., § 82. 
 IT lb., §83. 
 ** lb., § 84.
 
 S7 
 
 tiou to, the laying of his hand upon the Gospels and kiss- 
 ing the same, which is more solemn and ohligatorv in the 
 opinion of such person, the Court may, in his discretion, 
 adopt such mode of swearing such person." 
 
 Every person believing in any other than the Christian 
 religion shall be sworn according to tlie peculiar ceremonies 
 of his religion, if there be any such ceremonies, instead of 
 any of the modes hereinbefore prescribed. t 
 
 If, on being questioned, the witness reply that the usual 
 form of the oath will be binding on his conscience it would 
 be irrelevant and unnecessary to examine him further as to 
 his belief. 
 
 " The form of administering the oath is in' every case that 
 which most forcibly impresses on the swearer the obliga- 
 tion of the oath, or in other words is most binding on his 
 conscience." :|: 
 
 In questioning infants of tender years, it is usual to in- 
 quire as to their religious knowledge and whether they be- 
 lieve in God and in future punisliment ; but this is usually 
 to test their capacity. § 
 
 The opposite party is entitled to have them preliminarily 
 examined as to their knowledge of the nature of an oath. II 
 
 A person intoxicated ought not be sworn, nor permitted 
 to testify. And the judge may decide from his own view 
 upon the state of the witness in that regard. 
 
 In the modern Penal Code of China, oaths are neither 
 required nor admitted in judicial proceedings, 1[ and in this 
 
 *■ R. S., Part iii., chap, vii., title iii., art. ix., § 85. 
 
 t lb. , ^ 86. 
 
 X Amer. Cyclopasdia, vol. xii., p. 56:3. Therefore a Jew may be sworn 
 on the Pentateuch, or Old Testament, with his head covered (Strange, 821, 
 1113); a Mahommedan on the Koran (1 Leach Cr. Cas., 54); a Gentoo, 
 by touching with his hand the foot of a Brahmin or priest of his religion ; 
 a Brahmin, by touching the hand of another such priest (Wils., 34!)); a 
 Chinaman, by breaking a china saucer (1 Carr. & M., 248) ; 2d vol. , Bouvier's 
 Law Diet., p. 248. 
 
 § Jackson ra. Gridley. 18 Johns., 08. 
 
 II People vn. McXair, 21 Wend., 608. 
 
 Tl Lea gives as his authority for the above, Staunton Penal Code of China, 
 p. 364.
 
 38 
 
 resjject leads the more enlightened countries, who probably 
 are destined sooner or later to follow the example thus 
 intelligently set. 
 
 The inherent strength of ^testimony running the gauntlet 
 of the rules of evidence and the test of cross-examination 
 now determines its value. 
 
 The oath, whatever may have been the necessity for it 
 under ancient surroundings, is now deprived of most of its 
 support. Its continued use without strong reasons therefor 
 is calculated to induce that irreverence which must be 
 engendered by superfluous appeals to Divinity. 
 
 § 30. Witnesses for Complainant. 
 
 A warrant can issue on the uncorroborated examination 
 of the complainant, except in certain cases (ante, § 11), when 
 he is in possession of sufficient facts therefor. 
 
 It often happens that witnesses are necessary to supply 
 defects in the complainant's examination, in order to make 
 a case. 
 
 These witnesses are produced either by the complainant 
 or by process from the court. 
 
 xl subpoena must be substantially in the following 
 form : 
 
 " In the name of the People of the State of New York : 
 
 " To A. B. 
 
 "You are commanded to appear before C. D., a justice of 
 the peace of the town of 
 
 [or as the case may be] at [naming the place] on [stating 
 the day and hour], as a witness in a criminal action prose- 
 cuted by the People of the State of New York against 
 E. F. 
 
 "Dated at the town of , [as the case 
 
 may be], the day of , 18 . 
 
 " G. H., Justice of the Peace " [or as the case may be].* 
 
 If books, papers, or documents be required, a direction 
 
 * Code, ^ 612.
 
 39 
 
 to the following effect must be contained in the subpoena : 
 " And you are required also to bring with you the following 
 {describing intelligently the books, papers, or documents 
 required)." 
 
 Every court has the right to issue and compel obedience 
 to its subpoenas incidental to its power to hear and de- 
 termine issues. 
 
 A magistrate before whom an information is laid, may 
 issue subpoenas for witnesses within the state, either for 
 the people or defendant.!' 
 
 Witnesses summoned and refusing to attend or to answer 
 are punishable as for a criminal contempt, in the manner 
 provided in sections 8 and 9, N. Y. Code of Civil Pro- 
 cedure. | 
 
 The refusal of a witness to produce papers acknowledged 
 to be in his possession, for the reason that it would be a 
 breach of his privilege as attorney, is assuming the right 
 of determining for himself the question of privilege, which 
 is not his province, but that of the court ; and his refusal 
 to produce the papers is a contempt. S 
 
 A peace officer must serve, in his county, city, town or 
 village, as the case may be, any subpoena delivered to him 
 and make a written return stating the time and place of 
 service. Any other person though may make the service. II 
 
 A subpoena is served by delivering it or by showing it 
 and delivering a copy thereof to the witness personally. 
 
 " No person is obliged to attend as a witness before a 
 court or magistrate out of the county where the witness 
 resides or is served with- the subpcena, unless the judge of 
 the court in which the crime is triable, or a judge of the 
 Supreme Court, or a county judge, or, in the City of New 
 
 * Code, § 618. 
 
 fib., §608. 
 
 i lb , § 619; see also R. S., Part iii., ch. hi., title ii., art. i., § 10, subd. 
 3,5; Id., ch. ii., title i v., art. xiii., §274; Id., ch. viii., title xiii., § 1, 
 subd. 5. 
 
 § Mitchell's case, 12 Abb. Pr., 249. 
 
 11 Code, § 615.
 
 40 
 
 York, the Kecorder or City Judge, or Judge of tlie General 
 Sessions of that city, upon an affidavit of the prosecutor or 
 District Attorney, or of the defendant or his counsel, stat- 
 inn- that he believes that the' evidence of the ^'itness is 
 material and his attendance at the examination or trial 
 necessary, shall indorse on the subpoena an order for the 
 attendance of the witness.* 
 
 A wi'it of habeas corpus for the purpose of securing the 
 testimonv of any prisoner who may be detained in any jail 
 or prison within this State, will be granted by any justice 
 of the Supreme Court or any officer authorized to 
 perform the duties of such justice, upon the application of 
 a party to any proceeding before any officer or body who 
 may be authorized to examine witnesses in any suit or 
 proceeding.t 
 
 X convict in prison may be brought before court by 
 habeas corjjus, and examined as a witness, upon fried of a 
 fellow j^risoner, for or against him, for an offense committed 
 in prison. And the accused prisoner may be brought before 
 the court by habeas corpus. J 
 
 The district attorney of every county shall have power 
 to issue subpcenas for witnesses in support of any prosecu- 
 tion, to appear at any court, without the seal of such court ; 
 and every such subpoena, subscribed by the district attor- 
 ney issuing the same, shall be as valid and effectual as if 
 the seal of the court, at which any witness named therein 
 is required to appear, had been affixed thereto.§ 
 
 The sheriff, when it is necessary to send subpoenas into 
 a foreign county, shall serve the same and make the proper 
 return. ] ' 
 
 •■ Code, § 618. 
 
 f R. S., Part iii. , chap, ix., title i., art. i., §g 3 and 5. 
 
 i 2 L., 1874, chap. 460, gg 1-50, lol. 
 
 ^ R. S., Part iv., chap, ii., title iv., art. ii., g 63. 
 
 II L. 1886, ch. 506, § 4.
 
 41 
 
 § 31. Fees of Witnesses. 
 
 It is not necessary to pay or tender fees to witness in 
 any criminal case.* 
 
 Poor witnesses and those coming from out of tlie county, 
 attending on Lebalf of the j)eople, to be paid a reasonable 
 sum for expenses.t 
 
 Wheneyer any magistrate shall issue any subjDCjena in any 
 criminal proceeding or trial, he shall indorse upon the 
 back thereof a memorandum showing whether the same 
 was issued for the people or for the prisoner ; and eyery 
 officer or other person who shall insert the names of 
 witnesses in a subprena issued for the people, intended 
 for the prisoner, with intent thereby to deceiye any person, 
 or to obtain any pay as for seryices in subpoenaing wit- 
 nesses for the people, shall be deemed guilty of a misde- 
 meanor ; and no such magistrate shall charge or be allowed 
 for more than six subpoenas in any one criminal case, nor 
 shall any board of superyisors allow any charge for issuing 
 or serying any subpoena in any criminal case or proceeding 
 issued or seryed on behalf of a defendant.:}: 
 
 § 32. Detention of Witnesses. 
 
 It appears to be the common law that a witness may be 
 compelled to enter into a recognizance to appear at a 
 future day to giye eyidence in behalf of the State, and in 
 case of refusal he may be committed to i3rison.§ 
 
 Such also is the statute law of seyeral States. The wit- 
 ness was not, howeyer, at common law, required to procure 
 any surety. His own recoojnizance was all that was exacted. 
 To require him, as has sometimes been done, to procure 
 sureties in addition, is certainly an extraordinary exercise 
 of legislatiye power. '\ 
 
 * R. S. , Part iv. , ch. iL. title iv. , £irt. ii. , § 65 ; Id., title iii., ait. iii., § 37. 
 
 t Code, § 616. 
 
 X L., 184o, ch. 180, § 18. 
 
 § 1 Chit. Cr. Law, 76. 
 
 \ 4 Bl. Com., Weud. ed., 396.
 
 42 
 
 By the laws of tliis State, the magistrate shall, in all 
 cases of felony, bind by recognizance the prosecutor and 
 all the material witnesses against a prisoner committed 
 for trial to appear at the next court having cognizance of 
 the offense and in which the prisoner may be indicted.* 
 
 And if the magistrate be satisfied, hy dm proof (by 
 the Code " on oath "), that there is good reason to believe 
 that any such witness will not fulfill the conditions of such 
 recognizance, unless surety be required, he may order such 
 witness to enter into a recognizance with such sureties as 
 he shall deem meet for his appearance at such court.t 
 
 Should it satisfactorily appear by the oath of the witness, 
 or of any other person, that the witness is unable to 
 procure sureties, he may be forthwith conditionally exam- 
 ined on behalf of the people, in the manner and with the 
 effect provided in the Code. I 
 
 But the prosecutor or an accomplice to the crime cannot 
 be so examined. § 
 
 The Constitution of this State provides that " witnesses 
 shall not be unreasonably detained." || 
 
 § 33. Whether Examination to he in Writing. 
 
 The Eevised Statutes do not require that there shall be 
 either a written complaint or a written examination of the 
 complainant and his witnesses prior to the issuance of the 
 warrant. 
 
 The Code, however, provides that the magistrate must 
 take the depositions of the informant or prosecutor and 
 any witnesses he may produce, in writing.! 
 
 Independent of any statute, it is claimed by several 
 
 * R. S., Part iv., chap, ii., title ii., § 21. The Code provides that 
 recognizance may be required in any case under penalty of $100. § 215. 
 t R. S., Part iv., chap, ii., title ii., § 22; Code, § 216 ; lb., § 219. 
 XVo. 
 
 § lb., § 220. 
 I Const., art. i., §5. 
 1 § 148.
 
 43 
 
 writers, tlmt it is the duty oi the magistrate to take all 
 charges in writing." 
 
 However that may be, a variety of considerations recom- 
 mend the practice of taking down all complaints and exam- 
 inations in writing, among which are the following : 
 
 It will insure greater system and accuracy in the subse- 
 quent proceedings. 
 
 It will enable the justice, in case the complainant or any 
 of his witnesses are prosecuted for their doings in the mat- 
 ter, to show distinctly what they testified to, 
 
 It will facilitate his defense if the justice is himself pros- 
 ecuted, by enabling him to exhibit, at once, an information 
 on oath authorizing the warrant, and giving him jurisdic- 
 tion, t 
 
 A complaint separate and distinct from the examination 
 seems to be unnecessary. They may be combined in the 
 same instrument. :j: 
 
 § 34. Written Complaint. 
 
 We have just seen that, in this State at least, a confplaint 
 separate and distinct from the examination seems to be 
 unnecessary, and that both may be combined in the same 
 instrument. Instead of the examination embracing the 
 complaint, the complaint, when in writing, is usually made 
 to include the examination ; that is, to present sufficient 
 facts and circumstances to make any further examination by 
 the magistrate unnecessary, who can, after swearing the 
 parties to the complaint, adopt it also as his own examina- 
 tion ; and he usually does if sufliciently comprehensive. 
 
 But since the magistrate has the power to make the 
 examination of the complainant himself, he may reject any 
 written complaint made to him and in person conduct the 
 examination, or liy a further examination into matters not 
 
 « 1 Arch. Cr. Pr. and PL, page 103 (note), 8tli ed.; 1 Ch. Cr. L., 34. 
 
 t 2 Stark. Ev. 429, note a ; 2 Strange, 710; 8 East R., 113; 2 T. R., 225. 
 
 X 1 Arch. Cr. Pr. and PL, p. 104, note, 8th ed.
 
 44 
 
 presented by the written complaint add to it or modify it, 
 according to the facts elicited. Therefore the magistrate 
 should insist on the complaint being sworn to before him, 
 in order that he may see the complainant and his witnesses, 
 if he has any, and to enable any further information to be 
 obtained which may be deemed to be proper or necessary to 
 determine whether a warrant should issue. 
 
 The statute requiring the magistrate issuing the Avarrant 
 to make an examination under oath, would seem to require 
 him to refuse to issue a warrant on information sworn to 
 before any other person than himself, the proceeding being 
 in this respect unlike applications for civil orders of arrest, 
 wherein the affidavits are usually made elsewhere than in 
 the court where presented for process, a practice which may 
 be criticised for not furnishing that protection to defend- 
 ants proposed to be apprehended which is thrown around 
 persons accused in criminal proceedings.
 
 45 
 
 CHAPTEK II. 
 
 WHAT IS TO BE ELICITED ON THE PRELIMINARY EXAMINATION ? 
 
 Section 35. Parties. 
 
 36. Time. 
 
 a. Statutes of Limitation. 
 
 37. Place. 
 
 38. Statement of the offense. 
 
 39. Intent. 
 
 § 35. Farties. 
 
 The names, ages, addresses and occupations of the com- 
 plainant and his witnesses should be ascertaiiied at the 
 outset of their examination, for reasons that are apparent. 
 
 This is now necessary under the Code.* 
 
 Under the head complainant (ante, Part, i., chap ii.), the 
 questions affecting parties prosecuting are treated of to 
 some extent. Those relating to the defendant more 
 properly come in later, when we consider his rights. 
 
 § 36. Time. 
 
 Care should be taken in stating the time ; it should not be 
 open to the objection of being either repugnant, uncertain, 
 or impossible. 
 
 Formerly, greater strictness with respect to dates was re- 
 quired, especially in cases of felony.t 
 
 The day and year on which facts are stated in the indict- 
 ment, or other pleading, are not in general material ; and 
 the facts may be proved to hare occurred upon any other 
 day previous to the preferring of the indictment.:}: The 
 defendant should be reasonably protected against surprises, 
 
 * § 204, sub. i. 
 
 t 2 Hawks, c. 25, § 77 ; 2 Hale, 177, 178. 
 
 X 9 Cowen, 054 ; Code, g 280.
 
 46 
 
 and be enabled to plead a judgmeut rendered in bar to a 
 second proceeding for the same offense. 
 
 It is a rule of pleading applicable to indictments, that 
 every traversable fact must be alleged with time and place.* 
 It will not be sufficiently certain to state the month and 
 
 omit the year.t 
 
 It will be better to adhere to the ancient practice of 
 using the English language exclusively, but the intro- 
 duction of numeral characters, and the abbreviating of 
 " A. D.," for " the year of our Lord," will not create an 
 essential defect.:!: Otherwise, however, if the exact tenor or 
 fac-simile of any instrument is to be set forth. § 
 
 The use of words at length, will tend to greater certainty 
 and be less liable to alterations than figures. '. 
 
 The day and year need not be expressly stated ; if they 
 can be gathered from the whole examination it will be 
 sufficient.*^ 
 
 When time is material as an element of the crime, or 
 if it is to be proved by matter of record,-''^ it must be ac- 
 curately stated, tt 
 
 The same offense should not be allecjed to have been 
 committed on different days.+:j: 
 
 But if a day certain is charged, the words " divers other 
 days," might be rejected as surplusage. §§ 
 
 Laying the time of committing the offense " on or about " 
 a specified day, is ordinarily sufficient. |||| 
 
 * State vs. La Bore, 26 Vt., 765. 
 
 t Com. vs. Griffin, 3Cush., 523. 
 
 X State vs. Reed, 30 Maine, 489. 
 
 § Berrian vs. State, 2 Zabris., 9. 
 
 I ] Greene's Iowa Rep., 418; State o. Raiford, 7 Porter, 101. 
 
 •[ Gill vs. People, 10 X. Y. S. C, 3 Hun., 187; See Werner vs. State, 51 
 Geo., 426 ; People vs. Gregory, 30 Mich., 371. 
 
 ** Wharton's Cr. L., § 271, 275, 2209. 
 
 ft State m Caverly, 51 X. H., 446. 
 
 Xt State vs. Hendricks, C. & X., 369. 
 
 g§ Cook vs. State, 11 Ga., 53; Peoples. Adams, 17 Wend., 475; State 
 vs. May, 4 Dev.-, 328. 
 
 Ill Pasch., Dig. § 1611.
 
 47 
 
 In case the precise date cannot be given, instead of say- 
 ing " on or about tlie tenth dav of March, in the year of 
 our Lord, eighteen hundred and seventy-nine," the doubt 
 might better be confined absolutely to the day, by stating 
 the year and month with certainty, and then using the 
 words, "on or about" only in connection with the day of the 
 month, thus : 
 
 " In the year of our Lord eighteen hundred and seventy- 
 nine, month of March, and on or about the tenth day 
 thereof." 
 
 The presentation of the charge, when by information, 
 difiers materially from that by indictment. In the latter 
 case the accuser is somewhat of an impersonal character ; 
 in the former, the witnesses for the prosecution are sworn 
 and must be as accurate as possible in giving the time and 
 other circumstances of the offense, and cannot indulge in 
 broad statements. The references, therefore, that have been 
 introduced here respecting indictments have no strict 
 applicability to informations, but are given to illustrate the 
 spirit in which the elements constituting crime are 
 regarded. 
 
 a. Statutes of Limitation. 
 
 The offense should be laid on a day not barred by the 
 statute of limitation. If the date be blank, the proceeding 
 would be open to the objection that it may be barred by 
 the statute.* 
 
 Murder. 
 
 There is no limitation of time within which a prosecution 
 for murder must be commenced. It may be commenced at 
 any time after the death of the person killed.t This is ap- 
 plicable to an accessory before the fact.+ A conviction for 
 assault, etc., is no bar to an indictment for murder. § 
 
 * State xs. Johnson, 32 Tex. , 9G ; but see People X8. Santvoord, 9 Cowen, 
 654 ; State ts. Sam, 2 Dev. . .507. 
 
 t Code, g 141 ; R. S., Part iv., chap, ii., title iv., art. ii., § 37. 
 + People TS. Mather, 4 W., 229. 
 § Burns vs. People, 1 Park., 182.
 
 48 
 
 Other Crimes. 
 
 An indictment for a crime other tlian murder must be 
 found within five years after its commission, except where 
 a less time is prescribed by statute.-^ 
 
 Exception. 
 
 If, when a crime is committed, the defendant be out of 
 the State, the indictment may be found within the term 
 herein limited after his coming within the State ; and no 
 time, during which the defendant is not an inhabitant 
 of, or usually resident within the State, is part of the 
 limitation.'!' 
 
 It is not necessary that the defendant should have been 
 intermittingly absent from the jurisdiction. If he flies from 
 a prosecution, mere occasional returns will not start the 
 statute afresh.:]: 
 
 If the case is within the exception of the statute, it is 
 now generally required to state the time correctly and then 
 aver the exception. § 
 
 When Begins to Run. 
 The statute of limitation begins to run on the day of 
 the commission of the offense, but crimes may be instan- 
 taneous or continuous. With instantaneous, such as killine 
 and arson, the statute begins with the consummation ; with 
 continuous crimes, such as the carrying of concealed weap- 
 ons, use of false Aveights, public nuisances, II etc., enduring 
 after the period of consummation or continuing, it begins 
 with the ceasing of the criminal act or neglect.l The 
 statute is retrospective. *'■' 
 
 * Code, § 142. ~ 
 
 f ib.. § 143; \\. S., Part iv. , chap, ii., title iv., art. ii., § 37. 
 X U. S. vs. Wright, 5 Cr. C. C. R., IIG. 
 § Wharton's Cr. L., § 446, and cases there cited. 
 II People vs. Cunningham, 1 Den., 524. 
 •[[ Wharton's Cr. L., ^449. 
 
 ** Com. vs. Hutchinson, 3 Pars., 453 ; U. S. vs. Ballard, 3 McLean, 469 ; 
 but see Martin vs. State, 24 Tex., 61.
 
 49 
 
 When Indictment is Found. 
 
 An indictment is found "within the meaning of the statute 
 of limitations when it is duly presented by the grand jnry 
 in open court, and there received and filed.* 
 
 § 37. Fkwe. 
 
 How definitely shall the locality of the commission of 
 the offense be stated ? The place of the perpetration of 
 the crime must be within the jurisdiction of the court 
 applied to for process. The particular place need not be 
 proved.f It is proper, however, to fix it within as small 
 bounds as may be conveniently designated in some 
 manner that will be at once recognized. The accused 
 ought to be informed when practicable of the precise 
 place of the alleged occurrence, that he may be the 
 better prepared to demonstrate his innocence. Care, how- 
 ever, must be taken not to make any mistake or to be vague, 
 or to designate the locality by a name not legally assigned 
 or commonly applied. Better be more general in the de- 
 scription than unsafely venture to particularize. A designa- 
 tion of a territory as extensive as the jurisdiction of the 
 court will sustain a warrant, but the magistrate, however, 
 for obvious reasons, should insist on as small a division or 
 subdivision of land as can be positively ascertained. 
 
 In London, on account of its size and population, it is 
 always necessary to lay the offense either in some ward or 
 parish within its limits. | 
 
 In the City of New York the practice is to charge the 
 ward as a part of the venue, thus : " In the first ward of the 
 City of New York ; " in New Orleans to name the parish. 
 The same practice obtains elsewhere in large cities.§ 
 
 * Code, § 144. 
 
 f 4 Bla. Com. 30G; Hawk. b. 3, c. 35, § 84, c. 46, §§ 181, 183 ; East P. 
 C. 135; Holt, 534; 3 Hale, 179, 244, 345. 
 X 1 Wharton's Crim. Law, § 277. 
 § lb., § 880.
 
 50 
 
 Where there are distinct judicial districts in the county 
 and the proceeding is in one of the district courts it is not 
 sufficient that the caption names the county.* 
 
 The district must he named, else the plea, that the 
 offense is not shown to have been committed within the 
 jurisdiction of the court, will be successful.!" 
 
 In all cases, generally, where a statute makes a special 
 locality essential, such locality must correctly appear in 
 tlie complaint or indictment. :|: 
 
 The allegation of time and place should be repeated to 
 every material fact which is issuable or triable, the words 
 " then and there " being proper therefor. § 
 
 § 38. Statement of the Offense. 
 
 To state a crime its constituent parts should be pre- 
 sented, in order to enable the magistrate to arrive at the 
 conclusion that a criminal offense has been committed. The 
 complainant should submit the facts only, || the justice must 
 make the proper deduction. A statement of a legal result 
 is bad.*[ 
 
 If the offense is one at common law, its rules will define 
 the facts. In offenses against statutes, by the statutes 
 creating the offense.*"^ Information and belief or either will 
 be insufficient, facts and circumstances should be stated. ft 
 
 The Sixth Amendment to the Constitution of the United 
 States provides that, in all criminal prosecutions, the 
 accused shall enjoy the right " to be informed of the nature 
 and cause of the accusation." 
 
 * State m. Adams, 2 Battle's Dig. , 729. 
 
 t McBride w. The State, 10 Humph., 615, and see People vs. Barrett, 1 
 Johns., 66; State vs. G. S., 1 Tyler, 295; State es. Jones, 4 lialst., 357. 
 
 I 1 Wharton's Crim. Law, § 281. 
 
 § State vs. Roberts, 36 Maine, 268; State vs. Cotton, 4 Fost., 143 ; The 
 State vs. Johnson, Walkers R. , 392. For further illustrations on this sub- 
 ject see 1 Arch. C. Pr. and PI. pages 262. 263, 264, 265. 
 
 II Code, ^ 149. 
 
 •[ Stra. 1226; Hawk., b. 2, c. 25, §57; Bac. Abr., Indictment, G. 1. 
 ** 1 Arch. Cr. Pr. and PI., p. 265, 8th ed. 
 ft Hinman cs. Wilson, 2 How., 27; Campbell m. Mcl'ormick, 1 How., 251.
 
 51 
 
 " This provision applies as Avell to the preliminary pro- 
 ceedings for arrest before indictment as to the indictment 
 itself."* 
 
 In other constitutions it is expressed that the offense 
 must be "fully and plainly, substantially and formally 
 described." 
 
 This is said to be " the dictate of natural justice as well 
 as a doctrine of common law. The description, whpther in 
 an indictment or information or other j)roceeding, ought to 
 contain all that is material to constitute the crime set forth 
 with precision and in the customary forms of law."t 
 
 The application for an order of arrest in a civil proceed- 
 ing being analagous to that for a criminal warrant, the 
 safeguards that have been declared to be necessarv in civil 
 suits must not be lost sight of in criminal actions. Greater 
 caution, if anything, is to be observed in the latter cases, 
 because of one reason, at least, and that is that there is no 
 bond or undertaking given by the complainant as a secu- 
 rity to the accused and operating as a check on malicious 
 prosecutions. 
 
 To the numerous decisions respecting the sufficiency of 
 affidavits to olitain orders of arrest, the reader is therefore 
 referred for many valuable suggestions. 
 
 General charges, must be accompanied by specific acts 
 and circumstances to have any value whatever,:!: vague and 
 uncertain declarations will be defective. § 
 
 The statement of the offense should be positive, certain, 
 and not repugnant.il 
 
 Statutory Offenses. 
 
 It depends on the manner of an offense being stated in a 
 statute as to whether it will be sufficient to follow its words ; 
 
 * Matter of Peter Coleman, Blatchford, J. (1878), U. S. Cir. Court. 
 
 f Greenleaf on Evidence. Vol. 3, § 10. 
 
 X 1 Aroh. Cr. Pr. and PL, p. 266, 8th ed. 
 
 § Whiteside vs. People, Breese 4; 2 M. & S., 379. 
 
 11 1 Arch. Cr, Pr. and PI., pp. 27o, 276.
 
 if every fact necessary to constitute tlie offense is charged, 
 or necessarily implied by following the language of the 
 statute, the adoption of its phraseology will be sustained, 
 otherwise not. 
 
 The point has been made that the precise words of the 
 statute must be used. There is great authority and resting 
 on preferable ground, for the position that the charge 
 should be so described with clearness and certainty as to 
 bring it substantiaUy within the provisions of the statute. 
 
 If the facts constituting a statutory offense are properly 
 stated, the name is unnecessary, a wrong name would be 
 surplusage." 
 
 City Ordinances. 
 
 The number of the section of a city ordinance should be 
 given and the provision violated substantially set forth. t 
 
 Negativing Exceptions. 
 
 It is immaterial what precise words are employed to 
 negative the exceptions if they clearly and explicitly accom- 
 plish that purpose. 
 
 The charge must be shown affirmatively to be unaffected 
 by any exception contained in the same clause of the act 
 which creates the offense, or in the enacting clause, creat- 
 ing the offense. 
 
 But if an exception or y3roviso be in a subsequent clause 
 or statute, or although in the same section, yet if it be not 
 incorporated with the enacting clause by any words of refer- 
 ence, it is in that case matter of defense for the other party, 
 and need not be negatived by the prosecution. | 
 
 As to particular offenses, and the essential ingredients 
 thereof, and what offenses and defendants may be joined, 
 the numerous text-books extant will furnish abundant in- 
 formation. 
 
 * 1 Arch. Cr. Pr. and PL, 8th ed., p. 268. 
 
 t Keeler vs. Milledge, 4 Zab., 142. 
 
 X 1 Arch. Cr. Pr. and PI., 8th ed., p. 270.
 
 53 
 
 § 39. Intent 
 
 Crimiual intent will be presumed in many cases and need 
 not be proved. Sucli as wlien the act is in itself unlawful.'"^ 
 
 But when conduct is indifferent in itself and becomes 
 criminal only from the intent, the intention then becomes 
 material, and it is as necessary to allege and prove it as 
 -any of the facts and circumstances of the case.t 
 
 * 1 Arch. Cr. Pr. and PI., p. 274 (note), 8th ed. 
 fib., p. 273 (note).
 
 :p..a.:e^t III. 
 
 THE WARRANT 
 
 Chapter I. When Warrant to be Issued. 
 II. Kequisites of a Warrant. 
 
 III. The Arrest. 
 
 IV. Search Warrants. 
 
 CHAPTEK I. 
 
 § 40. When Warrant to he Issued. 
 
 We recall the fact that until within the last few centuries, 
 the peril which surrounded a person charged with crime 
 was very great. The chances of escape of an accused per- 
 son, owing to the character of the criminal proceeding, were 
 quite limited. 
 
 As will be shown later on there was no preliminary 
 examination before the trial with power on the part of the 
 examining officer to discharge on the failure of proof of 
 the guilt of the accused. Such examination, even after its 
 establishment for many years, was simply had to perpet- 
 uate the testimony against the suspected offender, and not 
 designed as a hearing by which the alleged criminal might 
 be released. 
 
 The trial itself was based on " the theory that superhuman 
 powers would save the innocent. The defendant was not 
 convicted by proof, but he stood condemned and was 
 permitted to clear himself only by a miracle, fraud or cor- 
 ruption furnishing a result accepted as the required 
 mediation of supernatural agencies. This, with the com-
 
 00 
 
 bat, were the only media of escape for a prisoner after the 
 decline of the compurgatorial oath." 
 
 It naturally suggested itself that ere a person should be 
 regarded as accused, some corroboration or security should 
 be exacted from the complainant. 
 
 The right of a prisoner in a number of cases to challenge 
 his accuser to single battle, operated as a powerful check 
 to malicious prosecutions. 
 
 Added to this, the Anglo-Saxon laws required, except in 
 trivial cases, a " fore oath " from the accuser, and to this 
 was sometimes required the addition of conjurators, their 
 oath having reference solely to the purity of intentions on 
 the part of the accuser. 
 
 The character or position of the person to be accused, 
 often obliged the accuser to be properly sustained before 
 the defendant would be called upon to answer. 
 
 In Denmark, in criminal cases, it appears that no man 
 could compel another to submit to a trial before the Naevn^-' 
 unless he either brought witnesses in support of his charge 
 or swore to its truth by an oath called the "as woren eth," 
 and it was the province of the juries to decide upon the 
 preliminary proofs whether they would allow the trial to 
 proceed or not. In this proceeding we may trace a faint 
 resemblance to our own grand jury system, the principle in 
 both being the same, namely, that a man ought not to be 
 put upon his trial unless there is a prima facie case of guilt 
 made out against him.t 
 
 The probabilit}- that an innocent person will now secure 
 his discharge in passing through the carefully-devised legal 
 proceedings designed to protect the guiltless, takes away 
 from an arrest most of the peril that attached to it in past 
 times. 
 
 * Xaevn were the proper jurors or sworn judges of Denmark, being so 
 called from Xaevn '" to name." They existed in verj' ancient times Hnd long 
 anterior to any of the extant Danish Codes, by one authority placed beunocii 
 the yeai"s 750 and TCO, and by another claimed to be of much older date. — 
 Forsyth's Trial by Jury, Amer. ed., by J. A. Morgan, page X*3, note. 
 
 f Forsyth's Trial by Jury, pages 24 and 25.
 
 56 
 
 Aside from tlie danger of conviction that will always 
 exist to create anxiety in the mind of an innocent defendant, 
 the suffering that is entailed on him by his restraint or 
 confinement, continues the, necessity, though not to such an 
 extent as formerly, for proceeding with care and caution 
 toward the apprehension of accused persons. 
 
 Therefore, owing to the fact that it is the settled practice 
 not to convict on the uncorroborated evidence of an accom- 
 plice,'^'" the magistrate, though he has the right to issue *a 
 warrant on the complaint of an accomplice unsupported by 
 other proof, since he is not an incomj)etent witness, should 
 prudently exhibit the greatest care before placing an ac- 
 cused so charged under restraint. The circumstances, 
 though, may be such that the narrative of the accomplice 
 will carry conviction with it, and the jury may, if they 
 please, act upon the evidence of a particepH criminis with- 
 out any confirmation of his statement.f 
 
 Since the Code, however, before a conviction can be had 
 an accomplice must be corroborated. % 
 
 Among the Eomans, it was the rule that the evidence of 
 an approver should be entirely rejected ; no man's freedom 
 or reputation could be endangered by the malice of one who 
 confessed himself a criminal. § 
 
 In determining whether there is sufficient evidence to 
 authorize the issuing of a warrant, a justice acts judicially. || 
 
 A warrant should not be issued on bare suspicion,! and a 
 statement of the facts upon information and belief is insuf- 
 ficient, if the attendance of the person from whom the 
 information was derived can be procured.^"- 
 
 * Greenleaf, vol. 1, p. 427, § 381. 
 
 t lb., § 380. 
 
 X § 3iJl). 
 
 § Pike's Hist, of ("rime in England, vol. i., p. 17. 
 
 II Horton vs. Auchmoody, 7 Weud., 200 ; 19 Wend., 50 ; 1 Den., 537, 540 
 and 590 ; 3 Den., 117 ; 1 Kern., 573. 
 
 T 4 Inst., 176 ; see 3 Hawk. P. C, 84. 
 
 ** Supreme Ct., 1801, Comfort vs. Fulton, 13 Abb. Pr., 270. People vs 
 Pratt, 22 Hun., p. 300.
 
 57 
 
 The Revised Statutes read, " if it shall appear from such 
 examinatiou," referring to that before issuing the warrant, 
 "that anv criminal ojffense has been committed, the magis- 
 trate shall issue a proper warrant." *'' 
 
 The Code provides that if the magistrate ' be satisfied 
 from the depositions of the prosecutor and his witnesses, 
 that the crime complained of has been committed and that 
 there is reasonable ground to believe that the defendant 
 has committed it, he must issue a warrant of arrest, t 
 
 From this it appears that the preliminary examination 
 shall disclose sufficient to make it appear that a criminal 
 offense has been committed. The facts must be elicited 
 which lead to that conclusion. All the facts need not be 
 drawn out after a, prima facie case is disclosed, as that; will 
 protect the magistrate ; but he should make the preliminary 
 examination sufficiently exhaustive, to embrace an inquiry 
 into those circumstances forming the usual defenses made 
 to the charge presented. The responsibility of the com- 
 plainant in answering to a contingent suit for malicious 
 prosecution may well be considered in determining tlie 
 thoroughness of the examination. It must rest in the sound 
 discretion of the justice as to how far he shall proceed. The 
 nature of the case, character of the complainant and de- 
 fendant, their relationship at any time, and any delay in 
 making the complaint are mattel's that prudence will re- 
 quire to be considered in the development of the case. It 
 should be the aim to examine first as to the essential 
 elements of the crime, and then into such incidental 
 circumstances as are calculated to throw light on the case. 
 Inquiry conducted in the nature of a cross-examination 
 after the direct questions are put to elicit the prima facie 
 case, will not be amiss. Motive is an important factor as 
 affecting the value of the evidence, and if not apparent 
 should be probed after. 
 
 A careful magistrate will save himself the arresting 
 
 * R. S. , Part iv. , chap. ii. , title ii., g 3. 
 t §§ 149 and 1.0.
 
 ;>8 
 
 power and the accused much time and labor, and the 
 government, therefore, useless expense, by as exhaustive an 
 examination as a wise and circumspect discretion will 
 suo-o-est ; and, what is more important than all, the accused 
 the mortification and often serious consequences flowing 
 from an arrest. 
 
 The foregoing considerations are not, however, to be re- 
 garded as encouraging reluctance in issuing warrants, nor as 
 favoring the interposition of obstacles between the com- 
 plainant and the warrant, but are stated in the interest of 
 prudence and care. Whenever it appears that an offense 
 has been committed, the magistrate should act with prompt- 
 ness and courage. 
 
 The policy of the law is against a reckless, careless, or in- 
 sufficiently considered exercise of the right to arrest, the 
 liberty of every one being sought to be jealously guarded 
 by every proper safeguard. But it must also be borne in 
 mind that it is a part of the duty of the magistrate to 
 unearth crime, to act in a measure as a prosecuting officer, 
 and not indifferently to turn away applicants for process 
 without adequate investigation, at least to such an extent 
 as to leave no room in his mind for a reasonable doubt as 
 to the course for him to pursue.
 
 59 
 
 CHAPTEE 11. 
 
 REQUISITES OF A WARRANT. 
 
 Section 41. It Must be Directed. 
 
 42. Recite the Accusation. 
 
 43. Designate the Person to be Arrested. 
 
 44. Whether to have a Seal. 
 
 45. Other Features. 
 
 46. Justice acts Ministerially. 
 
 § 41. It 3Iust he Directed. 
 
 This is an essential part of every warrant. At common 
 law the warrant might be directed to some indifferent 
 person, who is not an officer,* but now it should be to an 
 officer, the sheriff,!' or the constable]: of the county or town, 
 or to some individual officer. § 
 
 There are a number of statutes empowering policemen 
 
 *Barb. Cr. Law, 459 ; 1 Chitty's Cr. L., 38. 
 
 f Shire— reeve ; a keeper or steward of the shire or county. The Enghsh 
 sheriff, the sheriff of the common law, has succeeded to almost all the 
 authority, judicial and ministerial, that the earl or count (comes) had, and ia 
 the custodian of the county and the conservator of the king's peace. The 
 sheriff in the United States has duties almost wholly ministerial, and his- 
 jurisdiction extends over counties or parishes (Louisiana), as in England it 
 does over shires and counties, synonymous words corresponding nearly to a 
 province of Prussia or a department of France. Amer. Cyclop, title Sheriff. 
 
 A sheriff has power to appoint as many deputies as he thinks proper. R. 
 S., Part i., chap, xii., art. v., § 78. 
 
 \ The constable in England and America is an inferior common law ex- 
 ecutive. In England he is the constable of the hundred, usually called the 
 high constable, or the constable of the vill or tithing, called the petty con- 
 stable or tithing man. Special constables are also sworn in by the justices on 
 special occasions, where a breach of the peace is feared or exists. Constables 
 serve the process of justices of the peace, and also act generally as conserva- 
 tors of the peace. Amer. Cyclop., title Constable. 
 
 § Abbott vs. Booth, 51 Barb., 540.
 
 60 
 
 to execute warrants ; tliis is the case especially in large 
 
 cities. 
 
 The Code provides that the warrant shall be directed to 
 a peace officer,^ and he is defined to be a sheriff of a county, 
 or his deputy, or a constable, marshal, or policeman of a 
 
 city, town, or village. t 
 
 Magistrates should never resort to the practice of direct- 
 ing the warrant to a common person if an officer can be 
 conveniently found to execute it, inasmuch as such a person 
 cannot be compelled to make service or be punished in 
 case of refusal. :|; 
 
 A warrant addressed to the proper officer, and to an indi- 
 vidual by name, who was not an officer, is erroneous, and 
 confers no authority upon the individual to make the arrest. 
 A doubt was expressed whether it might not be law- 
 fully done when no officer was at hand to perform the 
 service, and that fact was expressed in the warrant. § 
 
 A mere permission, authorization or license, without 
 requiring and commanding it, would afford no justification 
 to one executing a warrant. The words of the Ke vised 
 Statutes are "commanding the officer." Those of the 
 Code, " commanding the arrest of the defendant." II 
 
 § 42. Recite the Accusation. 
 
 At common law the recital of the offense in the warrant 
 was not essential."! The object of the recital is to enable 
 the defendant to see whether the offense be bailable, so 
 that he may appear prepared with bail and witli any 
 defense that is admissible on the return of the warrant.** 
 
 * § 153. 
 t § 154. 
 
 :l:Id., 51 Barb., 551. 
 
 § Commonwealth vs. Foster, 1 Mass. K.. 488. 
 
 II § 151. 
 . 1" Atchinson m. Spencer, 9 Wend., 62 ; 19 Id., 56. 
 
 ** 1 Chitty's Crim. Law, 33, 34, 41 and 42 ; Hawk., B. 2. ch. 13, ^ 25 ; Bac. 
 Abr., Trespass, 574 D. 3.
 
 61 
 
 The Revised Statutes have altered the common law in 
 this resj^ect. The warrant, when issued to preserve the 
 peace, must recite the complaint.'^ When issued for the 
 api3rehension of offenders must recite the accusation.\ 
 
 According to the Code, " it must state an offense in re- 
 spect to which the magistrate has authority to issue the 
 warrant."! 
 
 It is never necessary to state the evidence by which the 
 charge is supported ; § neither need the particulars of the 
 charge be given, as required in an indictment. II 
 
 Larceny, whether grand or petit, is a criminal offense ; 
 thus the statute is satisfied despite the omission to give 
 the value of the property taken, and the warrant is never- 
 theless valid, and the magistrate of the county in which the 
 person accused is arrested, will be authorized to regard the 
 offense as petit larceny. 
 
 An apparent and merely clerical error, incapable of mis- 
 leading, comes within the equity of the provision of the 
 Revised Statutes, " that no indictment shall be deemed 
 invalid by reason of any defects or imperfections in mat- 
 ter of form which do not tend to the prejudice of the 
 defendant." IT 
 
 § 43. Designate the Person to he Arrested. 
 
 A practice existed in England until 1763 to issue what 
 was known as general warrants, under wdiich persons were 
 arrested without previous evidence of their guilt or iden- 
 tification of their persons. In that year this one of the 
 remnants of a jurisprudence which had favored prerogative 
 at the expense of liberty, which was continued on the 
 ground of usage, received its death blow from the boldness 
 
 * Part IV., chap, ii., title 1, § 3, 6th ed., vol. 3, p. 996. 
 fPart IV., chap, ii., title 2, §3, 6th ed., p. 998; Blythe vh. Tompkins, 
 Abb. Prac, Vol. 2, p. 473. 
 X § 152. 
 
 § Pratt vs. Bogardus, 49 Barb., 89. 
 ij 1 Vol. Bishop's r'rim. Proc. , § 228. 
 ^ Payne vs. Barnes, 5 Barb. , 465.
 
 62 
 
 of Wilkes, who, not seeing his name on the Avarrant under 
 which it was proposed to arrest him, declared it " a ridicu- 
 lous warrant against the whole English nation," which, on 
 the question being brought before the Court of Kings 
 Bench, was declared by Lord Mansfield to be illegal, saying, 
 "It is not fit that the judging of the information should be 
 left to the discretion of the oflicer. The magistrate should 
 judge and give certain directions to the ofiicer, and that no 
 degree of antiquity can give sanction -to an usage bad in 
 itself."* 
 
 The process for the arrest of an individual must so 
 describe the person intended that the officer woiild know 
 whom to arrest, and the party 'vhose liberty was threatened 
 might know whether he was bound to submit, f It is not 
 sutticient that the person in fact intended was arrested. :j: 
 A recital in the warrant cannot be availed of to aid the 
 officer in justifying the arrest. It may be shown, however, 
 that a person may be known as well by one name as the 
 other. § The law supjioses every person to have two 
 names, one the family, the other the given name. A sepa- 
 rate single letter is not a name. II But one Christian name 
 is recognized by the law.* An error in the middle name 
 may be treated as surplusage.** The addition of junior to 
 a name is mere description of the person, and the omission 
 of it does not invalidate any act or proceeding done by the 
 same person. it Where the name of the person commanded 
 
 * Barrow's Rep., III., 1743; St. Tr., XIX., 100; Sir W. Blackstone's 
 Rep., 555. 
 
 f Miller m. Foley, 28 Barb.. 631. 
 
 t Griswold vs. Sedgwick, G Cowen, 456; S. C, 1 Wend., 126; Scott ts. 
 Ely, 4 Id., 455 ; 1 Russ. on Crimes, 619 ; Hoye vs. Bush, 1 M. & Gr., 7"5. 
 
 gFarnham vs. Hildreth, S2 Barb., 279 ; Scott vs. Kly, 4 Wend., 555; 
 Shadget vs. Clipson, 8 East, 328 ; Gurnsey vs. Lovell, 9 Wend., 319 ; Mead 
 vs. Hawes. 7 Cowen, 333 ; Wilkes vs. Leech, 3 Taunt., 400. 
 
 I Frank vs. Levie, 5 Rob't, 599. 
 
 1 1 Ld. Ray., 563 ; 5 Johns., 84 ; 3 Cow., 463. 
 
 ** Van Voorhees vs. Budd, 39 Barb., 479; see Milk vs. Christie, 1 Hill, 102. 
 tt People vs. Collins, 7 Johns., 549; Fleets. Towns, 11 Wend., 522; Pad- 
 gett vs. Lawrence, 10 Paige, 170.
 
 03 
 
 to be arrested is correctly given in the direction to the 
 officer in the warrant, a recital in the body of the warrant 
 giving the name erroneously might be treated as surplus- 
 age." If only the initial of the Christian name is wrongly 
 given, the arrest is illegal, t 
 
 The Code is in these words : " The warrant must specify 
 the name of the defendant to be arrested, or if it be un- 
 known to the magistrate, the defendant may be designated 
 therein by any name.t 
 
 It is better to regard this provision as simply permitting 
 the use of a fictitious name, and not dispensing with the 
 recoo-nized rule that the defendant, whose name is unknown, 
 should be described as accurately as possible, so as to 
 leave no discretion to the officer as to whom to arrest. 
 
 S 4-1. Whether to have a Seal. 
 
 According to Cliitty, the general principle is that the 
 warrant ought to be under seal ; § but warrants have been 
 declared to be sufficient if in writing and signed with- 
 out a seal, unless expressly required by particular act of 
 Parliament, ii 
 
 Under the Revised Statutes the warrant may be with or 
 without seal, but must be under the hand of the magis- 
 trate.*! The Code is silent on this question. 
 
 § 45. Other Features. 
 
 The warrant should be dated and signed by the magis- 
 trate, giving his title ; also the place where issued should 
 appear, to show that he acted within his jurisdiction. 
 These elements are made necessary by the Code.""^ 
 
 * Miller vs. Foley, 28 Barb., (531. 
 
 f Graff «•.■?. :Mullin, April, 18o6. referred to in 28 Barb., G31 ; Hex vs. New- 
 mann, 1 I.d. Hay. ,562. 
 t % 152. 
 
 § 1 Chit. Cr. L.,38. 
 I 1 Bish. Cr. Prac, §227. 
 
 ^ Part IV., chap, ii., title ii., §3. ;. 
 
 ** § 152.
 
 64 
 
 It should also direct where the prisoner is to be brought. 
 
 The Code gives the following form for a warrant : 
 
 " 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 policeman in this 
 State [or in the county of Albany, or as the case may be], 
 as provided in sections 155 and 156 " (post, § 54). 
 
 " Information upon oath having been this day laid before 
 me, that the crime of [designating it] has been committed, 
 and accusing C. D. thereof. 
 
 " You are therefore commanded, forthwith to arrest the 
 
 above-named C. D., and bring him before me, at, [nam- 
 
 ino- the place,] or in case of my absence or inability to act, 
 before the nearest or most accessible magistrate in this 
 
 county. 
 
 " Dated at the City of Albany, [or as the case may^be], 
 this day of , 18 . 
 
 " E. F., Justice of the Peace, 
 
 [or as the case may be]."* 
 
 § 46. Justice acts MinisteriaUy. 
 
 The justice, in making and delivering the warrant to the 
 officer, acts ministerially.]' 
 
 This is an important distinction to an officer, for when 
 acting ministerially he is responsible for a violation of duty, 
 when judicially not. 
 
 * § 151. 
 
 f Blythe vs. Tompkins, 2 Abb., 472; Rogers vs. Mulliner, 6 W., 597, 603. 
 and cases there cited.
 
 65 
 
 CHAPTER III. 
 
 THE ARBEST. 
 
 Section 47. Outlawry. 
 
 48. Eoman Law. 
 
 49. Theoiy of the Arrest. 
 
 50. What is au Arrest? 
 
 51. Powers of the Officer. 
 
 52. Exhibiting Warrant. 
 
 53. How Prisoner to be Treated by Officer. 
 
 a. Stolen Property. 
 
 54. When and Where Warrant to be Executed. 
 
 55. Where Prisoner to be arraigned. 
 
 56. Return on Warrant. 
 
 57. Manner of Arrest not Inquired into by Magis- 
 
 trates. 
 
 58. Arrests in Presence of, Going to or Returning 
 
 from Court. 
 
 § 47. Outlaicry. 
 
 Outlawry was pronounced originally only in cases of 
 treason or felony, where the defendant refused to obey the 
 summons. Properly it was limited to those processes in 
 which a capias lay, that is, a writ or warrant to take the 
 person of the defendant. In criminal cases, sentence of 
 outlawry operated as a conviction of the offense itself with 
 which the accused was charged. 
 
 Bracton, who wrote in the thirteenth century, says, the 
 outlaw forfeits home and country, and becomes an exile. 
 
 All process and proceedings to outlaw any defendant in 
 civil actions* and all common law proceedings for the out- 
 
 * R. S., Part iii., chap, viii., title xvii., § 15.
 
 66 
 
 lawry of a defendant in criminal cases, except for treason, 
 were abolished by the Eevised Statutes." 
 
 By a judgment of outlawry in a conviction for treason, 
 all the civil rights of the convict are destroyed, and his 
 estate is forfeited to the State during his lifetime, t 
 
 § 48. Roman Laiv. 
 
 Under the Komau law there w^as no arrest until sentence 
 had been pronounced and the judgment could be evaded by 
 going into voluntary exile, in marked contrast with the 
 practice at one time in England, to seize the property of 
 the accused, arrested or imprisoned for suspicion of felony, 
 in addition to making the arrest at the outset. This seiz- 
 ure was towards the close of the fifteenth century deferred 
 till the conviction or attainder of the accused. | 
 
 § 49. Theory of the Arrest. 
 
 Dr. Lieber wrote, that, "Even in the freest country there 
 is this painful yet unavoidable contradiction, that while 
 we hold every person innocent until by lawful trial proved 
 to be guilty, we must arrest a person in order to bring him to 
 a penal trial ; and, although by the law he is still considered 
 innocent, he must be deprived of personal liberty until his 
 trial can take place, which cannot always follow instantly 
 upon the arrest. § 
 
 § 50. What is an Ari'est. 
 
 An arrest is the apprehending or restraining of one's 
 person, in order to be forthcoming to answer an alleged or 
 suspected crime. Some degree of corporal control is 
 ordinarily necessary to constitute an arrest. But an arrest 
 may be complete without corporal touch or control ; as 
 
 * Part iv., thap. ii., title vii., art. 2, § 20. 
 
 t Id. § 16 ; Id. chap i., title i., art. i., § 3. 
 
 X Richard iii. , chap. iii. (1483.) 
 
 § Civil Liberty and Self-Government, Rev. ed., 1874, p 07.
 
 where the j^arty to be arrested submits on being informed 
 of the intenned arrest.""^ Notice of arrest, is, however, 
 essential, and without it no amount of physical restraint is 
 sufficient.'!- But this notice may be given by implication.^ 
 
 § 51. Powers of the 0Jice7\ 
 
 The officer may break ojjen an outer or an inner door or 
 window of any building, to execute the warrant if, after 
 notice of his authority and purpose, he be refused admit- 
 tance. § 
 
 An officer may break open an outer or inner door or win- 
 dow of any building for the purpose of liberating a person, 
 who, having entered for the purpose of making an arrest, 
 is detained therein, or when necessary for his own libera- 
 tion. I! 
 
 Every person must aid an officer in the execution of a 
 warrant if the officer require his aid and be present and 
 acting in its execution.l^ 
 
 § 52. Exhihiting Warrant. 
 
 A regular officer is not bound to exhibit his authority or 
 process, when he arrests a defendant ; a special deputy is. 
 But if it were his duty to exhibit it, when demanded, his 
 refusal would not constitute him a trespasser, if he could 
 show that he had a regular legal process in his possession, 
 which authorized the arrest.** 
 
 A person not charged with felony cannot be arrested 
 without having an opportunity of seeing the warrant. tt 
 
 * Emery vs. Chesley, 18 N. H., 190. See State m. Phinney, 42 Me., 384; 
 Wood TS. Kinsman, 5 Vt., 588; Code, § 171. 
 
 t Yates vs. People, 33 N. Y. (5 Tiff.) 509. 
 
 X lb.; People vs. Pool, 27 Cal. , 571. 
 
 § Code, § 175. 
 
 iIb.,§17G. 
 lib., §§ 169, 163, 162. 
 ** Arnold vs. Steeves & Frost, 10 W., 517. 
 ttCodd vs. Cabe, N. Y. Weekly Dig., vol. 3, p. 376.
 
 68 
 
 The officer must have the warrant in his possession when 
 lie executes it or the arrest will be illegal* 
 
 Where the officer attempts to make the arrest for an 
 offense less than a felony, without having a warrant in his 
 possession at the time, the person against whom the war- 
 rant was issued will not be guilty of an assault in resisting 
 such attempted arrest, if no more force is used than is 
 necessary to prevent his apprehension.t 
 
 The Code provides that the defendant must be informed 
 by the officer that he acts under a warrant, and he must 
 show it if required.:}; 
 
 The officer who executes process must see that it is valid 
 on its face or he is liable for his acts under it. The law 
 does not throw any protection around the person who 
 attempts to arrest by an illegal warrant. § 
 
 The writ or warrant must not be deficient in the frame 
 of it. II It must be lawful on the face of it.^ 
 
 § 53. How Prisoner to he Treated by Officer. 
 
 The arrest should be made without unnecessary violence,** 
 and the arrested person should be kindly treated, though 
 it is for the officer to judge as to the severity of the meas- 
 ures necessary to prevent an escape.ft A prisoner escaping 
 after a lawful arrest may be retaken by the officer without 
 a fresh warrant, :}::{: even where the officer has consented to 
 the escape. §§ 
 
 * Codd vs. Cabe, N. Y. Weekly Dig., vol. 3, p. 376. 
 fib. 
 t § 1T3. 
 
 § Blythe vs. Tompkins, 2 Abb., 472 ; Housin vs. Barrow, 6 Durn. & E. , 122. 
 I Barb. Cr. Tr., 34, 35 ; Id., 82, 83, 464, 465. 
 ^Sandford vs. Nichols, 13 Mass. R., 285. 
 
 ** State DS. Mahon, 3 Harr. (Del.), 568; See Gardiner w. Thibodeau, 14 La. 
 Ann., 732; Brady vs. Price, 19 Tex., 285; Dillf*. State, 25 Ala., 15; Mor- 
 tons Bradley, 30 Id., 683. 
 
 ft State vs. Stalcup, 2 Ired. (N. C), 50. 
 tt Cooper «s. Adams, 2 Black. ^(Ind.), 294. 
 j5§Com. vs. Sheriff, 1 Gratt. (Va.), 127.
 
 69 
 
 The defendant is not to be subjected to any more re- 
 straint than is necessary for his arrest and detention.* 
 
 The officer making the arrest has, however, a right to 
 detain the defendant for a reasonable time while making 
 a bona fide effort to find a magistrate, and a warrant is not 
 spent if the first justice nor the second justice, before whom 
 he is brought, is unable to try the case.f 
 
 If the time of arrest be unseasonable, as in or near the 
 night, whereby the officer cannot attend the justice, or if 
 there be danger of a present rescue, or if the party be sick 
 and not able to be broiight, he may secure him till such time 
 as it may be seasonable to bring him.:|; 
 
 «. Stolen Property. 
 
 On a warrant for larceny, the officer on arresting the 
 accused, may also take possession of the goods, if found in 
 •the possession of the defendant, and bring them before the 
 magistrate ; and the latter may direct them to be delivered 
 to the owner from whom they were stolen, if he is satisfied, 
 judicially, that the property has, in fact, been stolen, and 
 that the claimant is the actual owner. § 
 
 See the Code on this subject (§§ 685-691). 
 
 § 54. When and lohere Warrant to he Executed. 
 
 A warrant must be executed immediately ; the officer can- 
 not delay in his discretion unless the ends of justice 
 may require it. II The Code provides that for misdemeanor 
 the arrest by warrant cannot be made on Sunday or by 
 
 * Code, § 172. 
 
 f Arnold vs. Steeves & Frost, 10 W., 515 ; Matter of Arthur Henry, 29 
 How. Pr., 187. 
 
 X Hale's Pleas of the Crown, 2 vol., p. 119, 120. 
 
 § Houghton vs. Bachman, 47 Barb., 388 ; R. S., Part IV., chap, ii., art. iii. , 
 §§ 38, 39, 40. 
 
 II 1 Chitty's Cr. L., 40, 59; Barb. Cr. L.,467; Matthews vs. Burke, ST. R. , 
 110, and see Queen vs. Downey, 72 B., 281 ; Wright vs. Court, 4 B and C, 
 596; Pratt «s. Hill, 16 Barb., 317.
 
 • 70 
 
 niglit, unless by direction of the magistrate, indorsed on 
 the warrant ; for felony, the arrest may be made on any 
 day, at any time of the day or night.* 
 
 Warrants issued by Justices of the Supreme Court, 
 Judges of the Superior Court or Common Pleas of the City 
 and County of New York, Judges of County or City Courts, 
 may be executed in any part of the State. Warrants issued 
 by any other magistrate shall not be executed out of the 
 county wherein they are officers, except if the defendant 
 be in another county, it may be executed therein upon the 
 written direction of a magistrate of such other county in- 
 dorsed uj^on the warrant, signed by him, with his name of 
 office, and dated at the city, town or village where it is 
 made to the following effect : " This warrant may be 
 executed in the county of ."t 
 
 The indorsement mentioned cannot, however, be made 
 unless upon the oath of a credible witness, in writing, in- 
 dorsed on or annexed to the warrant, proving the hand- 
 writing of the magistrate by whom it was issued. Upon this 
 l^roof, the magistrate indorsing the warrant is exemi:)ted 
 from liability to a civil or criminal action, though it after- 
 ward api^ear that the warrant was illegally or improperlv 
 issued.;]: 
 
 § 55. Where Prisoner to be Arraigned. 
 
 If the crime charged in the warrant be a felony, the 
 officer is to bring the person accused before the magistrate 
 who issued the warrant, or some other magistrate in the 
 same county. § 
 
 If the crime charged be a misdemeanor, and the defend- 
 ant be arrested in another county, he may demand to be 
 taken before a magistrate of that county to be admitted to 
 
 " 170. 
 
 f Code, §§ 155 and 156. 
 
 t lb., §157. • 
 
 §11, S., Part lY., chap, ii., title 3, §§ 3, 4, 12; Code, § 158. See lb., 
 §§ 163 and 163. •
 
 71 
 
 bail for liis appearance before the magistrate named in tlie 
 warrant.'^ 
 
 If tlie magistrate wlio issued the warrant is absent or 
 nnable to attend, the prisoner is to be taken before the 
 nearest or most accessible magistrate in the same countyt 
 to whom the depositions on which the warrant was issued 
 must be sent. If not procurable the prosecutor and his 
 witnesses must srive their evidence anew.:{: 
 
 &' 
 
 § 56. BeUirn on Warrant. 
 
 A proper return, indorsed on the warrant, when executed 
 and signed by the officer or person making the arrest, shall 
 be delivered to the magistrate. § 
 
 The officer may keep his warrant for his own justification, 
 and need only return to the justice what he has done in 
 pursuance of its commands. 11 
 
 By the Code the officer cannot keep the warrant, as com- 
 mitments for examination are to be indorsed on it,l which 
 will necessitate its delivery to the jailer when the defendant 
 is to be detained by him, and the magistrate at the end of 
 all examinations is to return the warrant with other papers 
 to the Court of Oyer and Terminer, or Court of Sessions 
 of the County or Cit_> Court having power to inquire into 
 the offense by the intervention of a grand jury.* 
 
 ** 
 
 § 57. 3Ianner of Arrest not Inquired into by Magistrates. 
 
 When a party is liable to be detained on a criminal war- 
 rant, the court will not inquire into the manner in which 
 the capture was effected. ii' 
 
 * Code, §§ 159, 160, 101. 
 
 fib., §164. \ 
 
 X\h., §166. 
 
 ^ K. S., Part IV., chap, ii., title ii., § 12, concluding part ; Code, § 164. 
 
 II 2 Ld. Raym., 1196 ; Dick's Just. Arr., 4. 
 If § 193. 
 ** § 221. 
 ft Rex vs. Marks, 3 Bast, 157 ; Ex parte Kraus, B and C, 258.
 
 72 
 
 On the return to a Avrit of habeas corpus the jailer is 
 only bound to show the warrant for the detention of the 
 party, and not the caption. On this point a distinction has 
 always existed between the practice in civil and criminal 
 cases. In the former the court inquires into the manner in 
 which the arrest was effected, and if that was improper, 
 they discharge the party.* 
 
 § 58. Arrests in Presence of, Going to, or Ret arning from, 
 
 Court. 
 
 It seems agreed that all criminal courts may discharge a 
 person arrested in the face of them by process from any 
 other court ; and it is holden that all such courts may also 
 discharge the arrest of any person during his journeying to 
 or from such courts, or his necessary attendance in them.f 
 
 * Lyf ord vs. Tyrrel, 1 Anstr., So; Spencer vs. Stuart, 3 East, 89 ; Ex parte 
 Susannah Scott., G. B. & C, 446. 
 f Hawk's Summary, p. 4.
 
 73 
 
 CHAPTER IV. 
 
 SEARCH WAERANTS. 
 
 Section 59. Search Warrant Defined. 
 
 60. Necessity for Caution in Issuing. 
 
 61. Upon what Grounds it may be Issued. 
 
 62. How Guarded ; Probable Cause. 
 
 63. Before Issuing Warrant Magistrate must Ex- 
 
 amine on Oath Complainant and his 
 Witnesses. 
 
 64. When Warrant to be Issued. 
 
 65. Form of the Warrant. 
 
 66. By whom Served. 
 
 67. Powers of Officer. 
 
 68. When Warrant may be Served in the Night- 
 
 time. 
 
 69. When to be Executed and Returned. 
 
 70. Duties Respecting the Property Taken. 
 
 71. If Grounds for Warrant Controverted, the 
 
 Magistrate to take Testimony, etc. 
 
 72. Maliciously Procuring Search Warrant a 
 
 Misdemeanor. 
 
 73. Peace Officer Exceeding his Authority. 
 
 74. Custodian of the Goods to be Arrested. • 
 
 75. Person Charged with Felony Supposed to 
 
 have a Dangerous Weapon, etc. 
 
 § 59. Search Warrant Defined. 
 
 A search warrant is an order in writing, in the name of 
 the people, signed by a magistrate, directed to a peace 
 officer, commanding him to search for personal property, 
 and bring it before a magistrate.* 
 
 * Code, § 791.
 
 § 60. Necessity for Caution in Issuing. 
 
 The jDrecautions to be observed, as heretofore indicated, 
 in issuing warrants of arrest, have peculiar force with 
 se'arch warrants, for, as has been well stated, "there is not 
 a description of process known to the law the execution of 
 which is more distressing to the citizen. Perhaps there is 
 none which excites such intense feeling in consequence of 
 its humiliating and degrading effects." * 
 
 Differing in various respects from ordinary warrants of 
 arrest, the search warrant presents features requiring sep- 
 arate notice. 
 
 § 61. Upon ivhat Grounds it may he Issued. 
 
 1. When the property was stolen or embezzled, in which 
 case it may be taken, on the warrant, from any house or 
 other place in which it is concealed, or from the possession 
 of the person by whom it was stolen or embezzled, or of 
 any other person in whose possession it may be ; 
 
 2. When it was used as the means of committing a felony, 
 in which case it may be taken, on the warrant, from any 
 house or other place in which it is concealed, or from the 
 possession of the person by whom it was used in the com- 
 mission of the crime, or of any other person in whose pos- 
 session it may be ; 
 
 3. When it is in the possession of any person with the 
 intent to use it as the means of committing a public offense, 
 or in the possession of another, to whom he may have 
 delivered it for the purpose of concealing it or preventing 
 its beino- discovered, in which case it mav be taken, on the 
 warrant, from such person, or from a house or other place 
 occupied by him or under his control, or from the possession 
 of the person to whom he may have so delivered it.t 
 
 * 1 vol. Arch. Cr. Pr. and PI., p. 131, Pomeroy's Notes. 
 t Code, § 792.
 
 To 
 
 § 62. — How Guarded ; Probable Cause. 
 
 By Coke claimed to be contrary to law, and by Lord 
 Camden characterized as having crept into the law by im- 
 perceptible practice, Lord Hale clearly establishes the 
 legality of search warrants on the ground that, without 
 them, felons would frequently escape detection." 
 
 Finally the process is recognized by statute and per- 
 mitted to be executed in the daytime on proper complaint 
 made on oath.t 
 
 The Constitution of the United States (substantially 
 adopted in the Constitution of each of the several States), 
 provides that the right of tjie people to be secure in their 
 persons, houses, papers and effects, against unreasonable 
 searches and seizures, shall not be violated ; and no war- 
 rant shall issue but upon probable cause supported by 
 oath or affirmation and particularly describing the place to 
 be searched and the person or thing to be seized. | 
 
 The warrant ought also to name the person in whose 
 building the stolen j^roperty is supposed to be.§ 
 
 § 63. Before Issuing Warrant, Magistrate must Examine, on 
 Oath, the Comijlainant and his Witnesses. 
 
 The magistrate must, before issuing the warrant, exam- 
 ine, on oath, the complainant and any witnesses he may 
 produce, and take their depositions in writing, and cause 
 them to be subscribed by the parties making them. || 
 
 The depositions must set forth the facts tending to estab- 
 lish the grounds of the application, or probable cause for 
 believing that they exist.* 
 
 «r 
 
 * 1 Arch., Cr. Pr. and PL, p. 126, Pomeroy's Notes. 
 fib. 
 
 XI Arch. Cr. Prac. and PI., p. 137 ; Code, § 793. 
 § 1 Arch. Cr. Pr. and PL, p. 129. 
 II Code, § 794. 
 \ lb., § 795.
 
 
 § 64. When Warrant to he Issued. 
 
 If tlie magistrate be thereupon satisfied of the existence 
 of the grounds of the application, or that there is jDrobable 
 cause to believe their existence, he must issue a search 
 warrant signed by him witli his name of office, to a peace 
 officer in his county, commanding him forthwith to search 
 the person or place named, for the property specified, and 
 to bring it before the magistrate.'^ 
 
 § 65. Form of the Warrant. 
 
 The warrant must be in substantially 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 policeman in the 
 county of Alhany (or as the case may be). 
 
 "Proof, by affidavit, having been this day made before 
 me, by (naming every person whose affidavit has been taken), 
 that (stating the particular grounds of the application, 
 according to section 792 ; or if the affidavits be not jDositive, 
 " that there is probable cause for believing that " stating 
 the ground of the application in the same manner), " you 
 are therefore commanded, in the daytime (or " at any time 
 of the day or night," as the case may be, according to 
 section 801), to make immediate search on the persoji of 
 0. D. (or " in the building situated " — describing it or any 
 other place to be searched with reasonable particularity, 
 as the case may be), for the following property (describing 
 it with reasonable particularity), and if you find the same 
 or any part thereof, to bring it forthwith before me, at 
 (stating the place). 
 
 "Dated at the City of Albany (or as the case maybe), the 
 dav of , 18 ." 
 
 " E. F." 
 Justice of the peace of the city (or town) 
 of (or as the case may be).t 
 
 * Code, § 796. 
 
 t See Johnson vs. Comstock, 14 Hun., 238 ; Code, § 797.
 
 7V 
 
 § 66. By luhom Served. 
 
 A search warrant may, in all cases, be served by any of 
 the officers mentioned in its direction, but by no other per- 
 son, except in aid of the officer, on his requiring it, he 
 being present and acting in its execution." 
 
 § 67. Poioers of Officer. 
 
 The officer may break open an outer or inner door or 
 window of a building, or any part of the building, or any. 
 thing therein, to execute the warrant, if, after notice of his 
 authority and purpose, he be refused admittance.t 
 
 Should it be necessary to break the outer door of a house 
 the officer should previously make the usual demand and 
 give notification of his business, but no precise form of 
 words is required.:}: Boxes may likewise be broken open 
 after a refusal to deliver up the keys on demand. 
 
 He may break open any outer or inner door or window 
 of a building for the purpose of liberating a person who, 
 having entered to aid him in the execution of the war- 
 rant, is detained therein, or when necessary for his own 
 liberation. § 
 
 § 68. When Warrant may he Served in the Night-time. 
 
 The magistrate must insert a direction in the warrant 
 that it be served in the daytime, unless the affidavits be 
 positive that the property is on the person or in the place 
 to be searched, in which case he may insert a direction 
 that it be served at any time of the day or night. II 
 
 § 69. When to he Executed and Returned. 
 
 A search warrant must be executed and returned to the 
 magistrate by whom it Avas issued, if issued in the city and 
 
 * Code, § 798. 
 
 t Bell y Clapp, 10 Johns., 203 ; Code, § 799. 
 
 iFost., 137. 
 
 § Code, § 800. 
 
 II lb., §801.
 
 78 
 
 county of New York, within five clays after its date, and 
 if in any other county, within ten days. Mtev the expira- 
 tion of those times respectively, the warrant, unless 
 executed, is void." 
 
 The officer is to keep the search warrant in his posses- 
 sion, and may use necessary violence to reclaim it.t 
 
 § 70. Duiles Iiespecfhifj the Property Taken. 
 
 When the officer takes property under the warrant, he 
 must give a receipt for the property taken (specifying it in 
 detail) to the person from whom it was taken by him, or in 
 whose possession it was found, or, in the absence of any 
 person, he must leave it in the place where he found the 
 
 property.:!". 
 
 When the property is delivered to the magistrate, he 
 must, if it was stolen or embezzled, dispose of it as pro- 
 vided in sections 687 to 689, both inclusive. If it were 
 taken on a warrant issued on the grounds stated in the 
 second or third subdivisions of section 792, he must retain 
 it in his possession, subject to the order of the court to 
 which he is required to return the proceedings before 
 him, or of any other court in Avliich the offense, in respect 
 to which the property was taken, is triable. § 
 
 Beturn of Warrant, and Delivery to Magistrate of Inven- 
 tory of Property Taken. 
 
 The officer must forthwith return the warrant to the 
 magistrate, and deliver to him a written inventory of 
 the property taken, made publicly, or in the presence of the 
 person from whose possession it was taken,, and of the ap- 
 plicant for the warrant, if the}-* be present, verified by the 
 affidavit of the officer, and taken before the magistrate to 
 
 * Code, § 803. 
 t 3Car. and P., 31. 
 X Code, § 803. 
 § lb., § 804.
 
 79 
 
 the following effect : " I, A. B., the officer by whom this 
 warrant was executed, do swear that the above inventory- 
 contains a true and detailed account of all the propert}' 
 taken by me on the warrant." * 
 
 The magistrate must thereupon, if required, deliver a 
 copy of the inventory to the person from whose possession 
 the property was taken, and to the applicant for the 
 warrant.'!" 
 
 If it appears that the property taken is not the same as 
 that described in the warrant, or that there is no probable 
 cause for believing the existence of the grounds on which 
 the warrant was issued, the magistrate must cause it to be 
 restored to the person from whom it was taken. :|; 
 
 The magistrate must annex together the depositions, the 
 search warrant and return, and the inventory, and return 
 them to the next Court of Sessions of the county, or city 
 court, having power to inquire into the offense in respect 
 to which the search warrant was issued, by the intervention 
 of a grand jury, at or before its opening on the first day. § 
 
 The officer ought not to take any goods except those 
 specified as likely to be of use in substantiating the charge 
 of stealing the goods that were specified. || 
 
 He may take goods corresponding in description with 
 those directed to be searched for. He is not made the 
 judge in the last resort of the identity of the goods with 
 those stolen. 1" 
 
 § 71. If Grounds for Warrant Controverted, Blacjistrate to 
 
 Take Testimony. 
 
 If the grounds on which the warrant was issued be con- 
 troverted, the magistrate must proceed to take testimony 
 in relation thereto.** 
 
 The testimony given by each witness must be reduced 
 
 * Code, § 805. t Code, § 806. 
 
 t lb., §809. § lb., §810. 
 
 II G Barn & Cress., 332. T 5 Mete, 98. 
 ** Code, § 807.
 
 80 
 
 to writing and authenticated in the manner prescribed in 
 section 200 of the Code.* 
 
 § 72. Maliciously Procuring Search Warrant, a 3Iisdemeanor. 
 
 A person who maliciously and without probable cause 
 procures a search warrant to be issued and executed, is 
 guilty of a misdemeanor.t 
 
 § 73. Peace Officer Exceeding Jus Authority. 
 
 A peace oflficer who, in executing a search warrant, will- 
 fully exceeds his authority, or exercises it with unnecessary 
 severity, is guilty of a misdemeanor. | 
 
 § 74. Custodian of the Goods to be Arrested. 
 
 The party in whose custody the goods are found is to be 
 taken before the magistrate with the goods, to be disposed 
 of according to the evidence as to his knowledge of the 
 goods having been stolen. § 
 
 § 75. Person Charged ivlth Felony supposed to have a 
 Dangerous Weapon, etc. 
 
 When a person charged with a felony is supposed by the 
 magistrate before whom he is brought to have upon his 
 person a dangerous weapon, or anything which may be 
 used as evidence of the commission of the offense, the 
 magistrate may direct him to be searched in his presence, 
 and the weapon or other thing to be retained, subject to 
 his order or the order of the court in which the defendant 
 may be tried. || 
 
 * Code, § 808. 
 
 f lb., § 811. 
 
 X lb., § 812. 
 
 § 3 Hale 151, 153.; 1 Nun. & Walsh, 3G3. 
 
 II Code, § 813.
 
 HISTORY OF THE EXAMINATION AFTER ARREST, 
 
 THE EXAMINATION AS EVIDENCE IN THE 
 
 TRIAL, AND THE DETENTION OF 
 
 THE ACCUSED PENDING 
 
 THE HEARING. 
 
 Chapter I. History of the Examination after Arrest. 
 II. Examination as Evidence on the Trial. 
 III. When and how Detention of Prisoner 
 
 pending the Examination. 
 lY. "Where to be Detained. 
 
 CHAPTEE I. 
 
 HISTORY OF THE EXAMINATION AFTER ARREST. 
 
 Section 76. Original Practice. 
 
 77. Development of the Examination. 
 
 § 76. Original Practice. 
 
 We have reached that stage when the accused is ar- 
 raigned in court after arrest, and whether apprehended by 
 warrant or without it, the proceedings that immediately 
 follow are in the main governed by the same rules ; but 
 prior to taking uy> the consideration of what they are, a 
 review of previous practices will be both interesting and 
 instructive. 
 
 " The criminal branch of jurisprudence is the earliest in 
 development but the latest to be reduced to a rational and 
 consistent system, requiring therefor a practical wisdom, 
 6
 
 82 
 
 tlie very latest growth of civilization capable of coping with 
 this, the highest branch of political science." * 
 
 Formerly the pleadings of the parties, in England at 
 least, were ore tenus, i. e., verbally, orally ; and the practice 
 is said to have been retained till the reign of Edward III.,t 
 and as there was no distinction in the primitive code be- 
 tween civil and criminal law, criminal ^proceedings formed 
 no exception to the rule. 
 
 " When punishments for petty offenses were worse than 
 brutal, the methods by which criminals were condemned 
 were naturally not very refined- In these early times, if a 
 thief was detected in the act of carrying off w^hat he had 
 stolen, no trial was considered necessary ; if a poor man, 
 who could not pay the fine, he was jDut to death with little 
 ceremony. In more doubtful cases, as we have seen, the 
 guilt or innocence was ascertained, in the case of a layman, 
 by one of two methods of procedure, — by ordeal or by 
 compurgation, — and later, by the wager of battle. The 
 practical effect of the first was, that the accused could only 
 be saved by the aid of the priest who had the ceremony in 
 charge ; the practical effect of the second was, that he 
 could be saved only by the oaths of a sufficient number of 
 friends, and the practical effect of the third was, that suc- 
 cess was to the strongest or most skillful in the use of 
 deadly weapons." :j: 
 
 At a time when the burden of proof of guilt was not 
 recognized as resting on the accuser, but, on the contrary, 
 the burden of proof of innocence was with the accused, it 
 would be idle to look for any provisions of law or customs 
 having in view the determination of the question as to 
 whether an accused should be put on trial. Nothing inter- 
 vened between the arrest and the trial, except the possi- 
 bility of being bailed, save time, which was usually so 
 
 * Amer. Cyclop., vol. v., p. 485. 
 
 t 3 Reeve's Hist. Eng. Law, 95 ; Stephen. Plead. 29, and see Bracton, 
 3726. 
 
 X Pike's Hist, of Crime in Eng., p. 52.
 
 83 
 
 prolonged as to call for statutory restrictions and limitations 
 involving severe penalties. And the trial, even, was such 
 but in name. We are referred to the proceeding against 
 Andrew Harela, Earl of Carlisle, as being thoroughly 
 characteristic of the age. He was thrown into prison and 
 the accusation against him was heard in his absence. He 
 had no opportunity of making any answer, and was brought 
 before his judges only to hear their judgment, which, the 
 Court sitting under a special commission, a tribunal com- 
 mon in those days, delivered at some length. 
 
 But we find, as against this one-sided hearing, that it 
 was one of the fundamental personal rights accorded by the 
 German law, that the accused should have a term in which 
 to reply and prejDare his proof, and thereby the defendant 
 was permitted at least seven days before the assembling of 
 the Court.* Also that the plaintiff must summon the 
 accused three times in the presence of good witnesses to 
 apjDear before the Court.t And elsewhere it is insisted 
 that no code provided for trials at any time, except by 
 sworn judges. 
 
 These principles, if ever enacted, were violated with im- 
 punity. When the means for the dissemination of knowledge 
 "were so limited and the central j)ower of government so 
 "weak and impotent, it is not at all surprising that statutes 
 should lie dormant and unobserved except in the imme- 
 diate neighborhood of the legislative halls. Hence cus- 
 toms and usages were recognized and ignorantly adopted 
 in direct conflict with law, until the art of printing was 
 firmly established.! 
 
 § 77. Development of Examination. 
 
 It was from no desire to enlarge the rights of accused 
 persons, or to throw around them safeguards against op- 
 
 * Henry VIL, §4. 
 t Inc. 11 ; Alfr. (Emil), 15. 
 
 X In the year 1500, it is said there were about two hundred (200) 
 printing offices in Europe.
 
 84 
 
 pression and injustice, that there was enacted a statute 
 which operated to the advantage of those arrested. The 
 theories that obtained woukl not suggest any provision 
 looking to the forms now recognized as an essential part of 
 criminal jurisprudence. That there existed in the minds 
 of people a disposition to provide a hearing preliminary to 
 trial, with whom the trial itself had not attained a state of 
 advancement worthy of the name, according to after con- 
 ceptions, is a proposition which to state it will secure its 
 
 rejection. 
 
 Legislation devised to meet another demand, incidentally 
 laid the foundation for a branch of criminal proceedings 
 now provided for throughout th'^ civilized world. 
 
 The power of a committing magistrate to discharge was 
 quite limited, and a prisoner once such remained in custody 
 at least until the next jail delivery in General Sessions. 
 
 The right to bail under these circumstances was a pecu- 
 liarly valuable one, and furnished whatever immunity or in- 
 dulgence that was sought to be extended prior to trial. This 
 right was early conceded, and it being iisually the only mode 
 of liberation before trial, became subject to great abuse. 
 
 To the attempts that were made by law to check the 
 arbitrary exercise of the bailing power is to be ascribed the 
 origin of a statutory direction for a hearing anterior to a 
 commitment to answer. Such efforts looked but towards 
 restraining the justices in their evil practices indicated^ 
 and never contemplated the initiation of what is now re- 
 garded as an indisj)ensable aid to justice. 
 
 By an act passed in A. D. 1483, the power was given to a 
 single justice to bail, in like form as though the prisoner 
 was indicted before the same justices in their sessions.* 
 
 Thereafter (1488) by another, it was ordained that no 
 prisoner arrested for felony should be letten to bail or 
 mainprise by any one justice of the peace, but by the whole 
 justices, or at least two of them, whereof one to be of the 
 quorum. 
 
 * 1 Richard III., cap. iii.
 
 85 
 
 The latter act not proving adequate to tlie ends for 
 which it was passed, there was finally adopted the statute 
 of Philip and Mary in 1554, the importance of which will 
 entitle it to more than a passing notice. 
 
 By way of preamble it states that, " One justice of the 
 peace in the name of himself and another of the justices, 
 his companion, not making the said justice party or privy 
 with the case wherefore the prisoner should be bailed, hath 
 oftentimes by sinister labour and means set at large the 
 greatest and notablest offenders, such as be not replevisable 
 by the laws of the realm , and yet the rather to hide their 
 affections in that behalf have signed the cause of their ap- 
 prehension to be but only for suspicion of felony, whereby the 
 said offenders have escaped unpunished, and do daily, to the 
 high displeasure of Almighty Lord, to the great peril of the 
 King and Queen's subjects, and encouragement of all thieves 
 and evildoers." * 
 
 The perniciousness. here inveighed against could not 
 have existed had not the proceedings prior to bailing been 
 oral, otherwise the justice joining in taking the bond could 
 have made himself " party or privy with the case where- 
 fore the prisoner should be bailed," and the true cause of 
 apprehension would have been readily ascertainable from 
 an examination of the written testimony, thus precluding a 
 false designation of the accusation. 
 
 This was, no doubt, the argument which resulted in the 
 adoption of the following section, one of the chief features 
 of which, it Avill be observed, lies in the direction to take 
 the evidence in writing. 
 
 " Said justices, one of them being of the quorum, when 
 any such prisoner is brought before them for any man- 
 slaughter or felony, before any bailment or mainprise, shall 
 take the examination of the said prisoner and information 
 of them that bring them of the fact and circumstances there- 
 of, and the same or as much thereof as shall be material to 
 prove the felony shall be put in writing, before they make 
 
 * 1 and 2 Philip and Mary, cap. xiii.
 
 86 
 
 the same bailment, which said examination, together with 
 with the said bailment, the said justice shall certify at the 
 next General Goal delivery to be holden within the limits of 
 their Commission." ^ 
 
 We have now, for the first time, a statutory regulation 
 respecting examinations. It proves, beyond question, that 
 all previous hearings, if any were had, must have been oral, 
 the simplest forms being resorted to, and in the absence of 
 any legal necessity therefor and the slender power to dis- 
 charge, snch hearings were of no importance or value and 
 resulted in either the bailing or commitment of the sus- 
 pected party. They were not regarded as of any material 
 service to either the people or the prisoner, and were, no 
 doubt, simple statements to inform the justice of the 
 nature of the offense to enable him to determine only 
 whether bailable or not, and the character of bail to require. 
 
 Though the statement of the prisoner himself on the 
 examination was declared to be proper, it does not aj^pear 
 that he was permitted to be present at the examination of 
 the complainant and his Avitnesses, to cross-examine them, 
 or to be aided by counsel or to present witnesses on his 
 own behalf. If a hearing was accorded to the witnesses for 
 the defense they were not sworn, their testimony being 
 simply written down and transmitted with the other papers. 
 On the trial of felons before the Justices of jail delivery, 
 the latter often heard witnesses and evidence which went 
 to the acquittal of the prisoner, yet not on oath, and de- 
 livered such testimony and evidence " to the jury to give 
 credit or to think thereof as thev shall see fit and find 
 cause, "t 
 
 The statutes of Philip and Mary were amended and 
 extended to make their provisions applicable to persons 
 taken on a charge of misdemeanor or suspicion thereof.:]: 
 
 * 1 and 2 Philip and Mary, cap. xiii. 
 t Dalt. chap, clxv., p. 412. 
 tGeo. IV., ch. 64, §3.
 
 87 
 
 CHAPTER 11. 
 
 § 78. Examination as Evidence on the Trial. 
 
 Examinations cease to be what they were prior to 
 statutory recognition, extra-judicial, and are admitted in 
 evidence on the trial of the prisoner upon general prin- 
 ciples of evidence, on the ground that they have been taken 
 in the course of a judicial proceeding exjDressly authorized 
 by law, when the defendant was present and had the 
 right of cross-examination. 
 
 But it would be only a part of the true reason, and 
 tend to mislead, were it said that the depositions 
 taken in examinations are admitted in evidence, because 
 not extra-judicial Going iipon that reason alone, the 
 original complaint on oath before the magistrate on apply- 
 ing for a warrant would be admissible in evidence 
 against the defendant, although he had not then been 
 brought into Court. This is a judicial proceeding, and yet 
 it does not appear that the original complaint was ever 
 received in evidence against the defendant. The contrary 
 was expressly adjudged. "" The deposition must not only be 
 taken in a judicial proceeding, but it must be taken when 
 the defendant is present and has the opportunity to cross- 
 examine the witness ; otherwise it will not be received. An 
 extra-judicial examination in the absence of the prisoner 
 might, however, be received as a dying declaration. It 
 is said that the object of the statute was not to provide 
 for such examinations becoming matter of future evidence, 
 such a purpose was not in the contemplation of the 
 Legislature, but to enable the reviewing court to see 
 whether the examining justice proceeded correctly, and 
 whether the witnesses are consistent or contradictory in 
 
 * 2 Hill's S. Car. L. R., p. 009.
 
 88 
 
 tlie evidence wliicli tliey give, witliont manifesting any in- 
 tention to alter the law of evidence. 
 
 But before the statute of Philip and Mary, a deposition 
 taken before a justice of the county where a felony was 
 committed would not have been evidence, even though the 
 witness had died or was unable to travel, because extra- 
 judical.* 
 
 On this subject of evidence, Eyre, Chief Baron, said : 
 "The most common and ordinary species of legal evidence 
 consists in the depositions of witnesses taken on oath before 
 the jury, in the face of the court, in the presence of the pris- 
 oner and received under all the advantage which examina- 
 tion and cross-examination can give. Beyond this kind of 
 evidence there are also two other species which are admit- 
 ted by law : the one is the dying declaration of a person 
 who has received a fatal blow ; the other is the examination 
 of a prisoner and the depositions of the witnesses who may 
 be produced against him, taken officially before a justice of 
 the peace, by virtue of a particular act of Parliament, which 
 authorizes magistrates to take such examinations, and 
 directs that they shall be returned to the court of jail de- 
 livery. This last species of depositions, if the deponent 
 should die between the time of examination and the trial 
 of the prisoner, may be substituted in the room of viva voce 
 testimony, which the deponent, if living, could alone have 
 given, and is admitted of necessity as evidence of the fact."t 
 The same point we have in Hawkin's PL Cr., b. 2, c. 46 § 15, 
 to the effect that the depositions of a witness, taken upon 
 oath, in the presence of a prisoner who has been 
 brought before the magistrate on a charge of felony, 
 may be given in evidence on the trial of an indictment for 
 the same felony, if it be proved on oath, to the satisfaction 
 of the court, that the informant is dead, insane, or not able 
 to travel, or that he is kept away by the means and con- 
 trivance of the prisoner. 
 
 It seems, however, to be very doubtful whether the mere 
 
 * 1 vol., Phillips on Evidence, 368. 
 t See Code, § 8, subd. 3.
 
 69 
 
 casual and temporary inability of the witness to attend in a 
 criminal case, be sufficient ground for admitting liis deposi- 
 tion, which affords evidence of a nature much less satis- 
 factory than the testimony of a witness examined viva voce in 
 court, and which might be procured at another time if the 
 trial were to be postponed. It is true that the prisoner had 
 the power to cross-examine the witness, but this was at a time 
 and under circumstances very disadvantageous to the prison- 
 er. To warrant such evidence it is essential to prove by the 
 justice, coroner and his clerk, etc., that the depositions con- 
 tain the substance of the information on oath. It is not 
 necessary to prove that the depositions were signed by the 
 witnesses. Parol proof will not be permitted to reform 
 papers offered in the examination before the committing 
 magistrate.* When the examination is produced and the 
 magistrate swears that it was taken in joursuance of the 
 statute, and nothing appears to the contrary, it may be pre- 
 sumed that all the necessary forms were duly observed.f 
 
 It seems that a simple offer to retake examinations will 
 not aid a defective or irregular one, but all examination 
 in such cases should be de novo. 
 
 * 1 PhU. Ev., 113, 114, 370. 
 
 f The People «s. Moore, 15 Wend., 419.
 
 90 
 
 CHAPTEE III. 
 
 WHEN AND HOW DETENTION OF PRISONER PENDING EXAMINATION. 
 
 Section 79. Detention of Prisoner. 
 
 a. Offenses against the General Government 
 
 and other States. 
 h. The Code. 
 
 c. City of New York. 
 
 d. Other States. 
 
 80. Whether Remand may be Verbal or should 
 be in Writing. 
 «. The Code. 
 h. City of New York, 
 c. Other States. 
 
 § 79. Detention of Prisoner. 
 
 A prisoner is entitled to a prompt hearing. 
 
 Article 6 of the Amendments to the Constitution of the 
 United States provides as follows : 
 
 "In all criminal prosecutions, the accused shall enjoy 
 the right to a speedy and public trial by an impartial 
 jury." 
 
 This guarantee clearly imposes a duty on all committing 
 officers to proceed through all the stages#prior to trial, 
 without unjastifiable delay. 
 
 The Revised Statutes provide likewise that the magistrate 
 " shall proceed as soon as may be." * There are similar 
 provisions in other States.t 
 
 Where a party is arrested and brought before a justice, 
 he must be either discharged, bailed or committed,:}: 
 
 *Part IV., chap. ii.. title ii., § 13. 
 
 t Arch. Cr. Prac. and PL, vol. 1, p. 134, note. 
 
 X Hale, P. C, chap. 14, vol. 2, 120.
 
 91 
 
 but the justice may detain the accused for a reasonable 
 time for examination, and may be justified in ordering the 
 prisoner to be detained to enable the prosecutor to bring 
 his witnesses. The arresting officer, however, has no such 
 power.* 
 
 When a commitment is for an unreasonable time it is the 
 better opinion that the commitment is void from the begin- 
 ning and ought not to be considered void pro tanto only, 
 i. e., for so much of the time as was unreasonable, for if 
 the magistrate commit for an unreasonable time, he thereby 
 does an act which he is not authorized by law to do.f 
 
 In one case, the commitment for re-examination was for 
 a period of fourteen days, and though it was bom Jide and 
 without any improper motive, the justice was held respon- 
 sible. | 
 
 A prisoner in the presence of the justice was ordered by 
 the latter into the custody of the constable until the next 
 day. Held, not a justifiable act without good cause. § 
 And a magistrate was held liable for false imprisonment 
 who, in meeting a constable having a prisoner in custody 
 on his way to court, said, " Take him back, I will see him 
 to-morrow." || A magistrate has no authority to order a 
 person accused of a criminal offense to be committed until 
 a subsequent day for examination, without the accused be- 
 ing first brought before him.TF A mayor, who was likewise 
 a justice of the peace, detained a prisoner in his house 
 for eighteen days, to examine him and another concerned in 
 the robbery, who was not apprehended. Such action was 
 adjudged improper in a suit against the mayor. Three 
 days was in that case declared to be the limit of the law.** 
 
 ♦Wright m. Court and others, 4 B. & C. Rep., p. 598; 3 Davis' Rep.' 
 184, and id. Index, Commitment. 
 
 t Davis vs. Copper, 10 B. & C, 38 ; Rex vs. Gooding, Burns Justice, 24th 
 ed., vol. 1, p. 1009. 
 
 X Davis vs. Copper, 10 B. & C, 38. 
 
 § Boughton vs. Mulshoe, Moore, 408. 
 
 I Edwards vs. Ferris, 7 C. & P., 542. 
 
 1[ Pratt vs. HUl and others, 16 Barb., 803. 
 
 ** Scavage vs. Taltham, Cro. Eliz., 829.
 
 92 
 
 But it seems tliat the time for wMch a party may be com- 
 mitted for re-examination may vary according to circum- 
 stances, which may become a mere question of law, or one 
 of mixed law and fact, on suit being brought for such deten- 
 tion." 
 
 There are many instances of prisoners being detained 
 more than twenty days between their first being brought 
 before a justice and their commitment for trial, and being 
 brought up for examination several diflerent days during 
 the interval.t 
 
 Under the statutes, as well as at common law, the magis- 
 trate will be allowed a reasonable time, before he makes his 
 final decision.:!: 
 
 a. Offenses against General Government and other States. 
 
 A commitment may be made to enable the general gov- 
 ernment to apply for and take the prisoner into custody. 
 This has been held of a foreign government, to whom we 
 were bound only by the law of nations. § 
 
 A United States Commissioner, but not in the absence 
 of the accused, may adjourn the examination on a criminal 
 complaint to another time and place. || 
 
 For a crime against another State a commitment may be 
 made for a reasonable time, to give the governor thereof 
 notice.l 
 
 b. The Code. 
 
 Under the Code the magistrate is directed to j)roceed 
 immediately with the examination, except that if the de- 
 fendant requires counsel he must wait a reasonable time 
 
 therefor.'^* 
 
 * Davis vs. Copper, 10 B. & C, 33. 
 t Chitty's Cr. L., vol. 1, p. 73. 
 tl Chit. Cr. L., 72. 
 
 §17 Jolin. Rep., 4, U. S. vs. Lathrop; 11 John Rep., 554, note; 1 Chit. 
 C. L.. 73-4; Muirt's. Kaye, 4 Taunt., 43. 
 i U. S. vs. Rundlett, 2 Curtiss C. C. Rep., 41. 
 
 1 Ex parte Smith, 5 Cowen, 276 ; see title, Fugitives from Justice, post. 
 ** § 190.
 
 93 
 
 The examination must be completed at one session unless 
 the magistrate, for good cause shown, adjourn it. The ad- 
 journment cannot be for more than two days at each time, 
 nor more than six days in all, unless by consent or on mo- 
 tion of the defendant.* 
 
 c. City of New York. 
 
 Besides the provisions of the Criminal Code just given, 
 obtaining throughout this State, we find directions relating 
 to New York City, that rules shall be adopted by the 
 Board of Police Justices containing, among other regula- 
 tions, provisions for entering in the books of records of their 
 Police Clerks the reasons for any unusual delay in any pro- 
 ceeding, t 
 
 The Police Justices therein are also prohibited from 
 committing or recommitting any person for examination, 
 save for necessary cause, or from adjourning the hearing 
 upon any charge to another day without likewise clearly 
 stating such necessary cause, or the suggestion of the 
 reason for such adjournment upon such records.^ 
 
 d. Other States. 
 
 In Texas, the examination may be adjourned for a reason- 
 able time to procure testimony. 
 
 In Maiue,Virginia and Wisconsin the magistrate is author- 
 ized to adjourn the examination without the consent of the 
 person charged, from time to time, not exceeding ten days 
 
 at one time. § 
 
 In Michigan, the examination may be adjourned from 
 time to time, without the consent of the accused, and to the 
 same or a different place in the county, as shall be deemed 
 necessary. || 
 
 *§ 191. 
 
 t L. 1873, chap. 538, § 13, sub. 7. 
 
 Jib., subd. 8. 
 
 § Rev. Sts. of Maine, c. 171, § 9 ; Code of Va., tit. 55, c. 204, § 8 ; Rev. 
 
 Sts. of Wis., c. 145, § 9. 
 
 II Rev. Sts. of Mich., chap. 163, § 10.
 
 94 
 
 § 80. Whether Remand may he Verbal or shall he in Writing. 
 
 At common law, the prisoner may be verbally remanded 
 from time to time ; a written warrant or authority is un- 
 necessary.* A commitment for a reasonable time though 
 not in writing is good.f It is usual, however, to make out 
 a written warrant for examination or re-examination till 
 another day, which need not state the crime of which the 
 party is accused, for it may not always be proper to let 
 the peace officer know the cause of detention.:}: 
 
 By the English statute, " if from the absence of witnesses, 
 or from any other reasonable cause, it shall become neces- 
 sarv or advisable to defer the examination or fiirther 
 examination of the witnesses for any time," the party 
 accused may, by warrant, be remanded for a time " not 
 exceeding eight clear days * * * If the remand be for 
 a time not exceeding three clear days " it may be verbally 
 into the hands of his custodian, but the time of remanding 
 so fixed may be terminated by the committing justice.§ 
 
 a. The Code. 
 
 This Code directs that if an adjournment, pending the 
 examination, be had for any cause, and the defendant is not 
 bailed or does not make a deposit of money as provided 
 for therein, || he must be committed by an indorsement 
 on the warrant of arrest, to the following effect : " The 
 within named A. B., having been brought before me 
 under this warrant, is committed for examination, to the 
 sheriff of the county of ," or in the city and 
 
 county of New York, " to the keeper of the city prison of 
 the city of New York. " 1" 
 
 * Arch. Cr. Prac. and PI. vol, i., p. 134, note and cases there cited. 
 
 f Moore 408, Bums Justice, vol. 1, p. 1009. 
 
 X Chitty's Grim. L., p. 73 ; see 2 Hale, P. C. 130, 121. 
 
 gll & 12 Vict., c. 42, §21. 
 
 1 §§ 586-589. 
 
 1 §§ 192, 193.
 
 95 
 
 h. New Yorh City. 
 
 In addition to the provisions of the Code just given, de- 
 termining the manner of committing for examination, in the 
 city of New York the reason for any unusual delay must 
 be entered on the books of record to be provided for that 
 purpose by the Police Justices, and no person, as before 
 stated, shall be committed or recommitted for examination, 
 save for necessary cause, without clearly stating such ne- 
 cessary cause.* 
 
 c. Other States. 
 
 In Michigan the remand may be verbal or by warrant.f 
 In Virginia,^ Wisconsin, § and Maine, || statutes provide for 
 a remand by warrant. IT 
 
 * L., 1873, chap. 538, § 13, subd. 7 and 8. 
 
 f Rev. Stat. Mich., c. 163, § 1. 
 
 t Code of Va., tit. 55, c. 204, § 10. 
 
 § Rev. Stat, of Wis., c. 145, § 11. 
 
 II Rev. Stat, of Maine, c. 171, § 11. 
 
 TT Arch. Cr. Pr. & PL, vol. 1, p. 135, note.
 
 96 
 
 CHAPTEE lY. 
 
 WHERE TO BE DETAINED. 
 
 Section 81. General Kemarks. 
 
 82. How in England. 
 
 83. New York State. 
 
 a. Offenders against the United States. 
 h. Bailing Prisoners pending Examination. 
 
 84. New York City. 
 
 § 81. General Remarks. 
 
 The commitment pending an examination, as also for 
 trial, like the arrest, is with a view solely to prevent an 
 evasion by the accused party of the penalty of the law that 
 may be adjudged against him. 
 
 It is not in the nature of punishment, for all are to be 
 deemed innocent until proven to be guilty. 
 
 The same considerations that apply to bail — the gravity 
 of the offense, the stage and force of the proofs and the 
 character of the prisoner — will influence the disposition to 
 be made of him. 
 
 The manner of detention has therefore been varied and 
 should be more secure the further the proceeding advances 
 towards conviction. Cases may arise when detention pend- 
 ing the examination would amount to an abuse of power. 
 
 § 82. How in England. 
 
 The prisoner may be continued in the custody of the 
 officer or may be detained in the justice's house or com- 
 mitted to some near safe place in custody till the examin- 
 ation can be taken.* 
 
 * 10 B. & C, 33 and 33.
 
 97 
 
 By statute, lie may be committed to the common jail, or 
 house of correction, or other prison lock-up or place of 
 security in the county, riding, division, liberty, city, bor- 
 ough or place for which the justice shall then be acting. 
 If the remand be for a period not exceeding three clear 
 days, the custody may be in the constable or other person 
 in whose custody such accused party may then be, or any 
 other constable or person to be named by the said justice.* 
 
 § 83. New York State. 
 
 By the laws of this State, " the common jailsf in the sev- 
 eral counties of this State shall be kept by the sheriffs of 
 the counties in which they are respectively situated, and 
 shall bemused as prisons.":}: * * ^ ^j^^ the keepers 
 of the several county prisons shall receive and safely keep 
 every person duly committed to their custody for * * 
 examination, * * and shall not, without lawful 
 
 authority, let out of prison, on bail or otherwise, any such 
 persons." § 
 
 Boards of Supervisors of the various counties have 
 power to provide jails and houses of detention.il Special 
 laws are not interfered with nor are cities whose boundaries 
 are the same as those of the county included. IF 
 
 In counties having no jails, those in contiguous counties 
 may be used on compliance with certain conditions.** 
 
 * 11 and 12 Vict., c. 42, § 21. 
 
 f Originally, a jail seems to have been a place where persons were confined 
 to await further proceedings, e. g., debtors till they paid their debts, wit- 
 nesses and accused persons till a certain trial came on, etc. , as opposed to 
 prison, which was for confinement, as punishment, in general, now there 
 is no such distinction, except that the latter belongs to a greater extent of 
 country ; thus we say a State prison and a county jail (Bouvier's Law Die, 
 vol. i., p. 751). 
 
 X L. 1847, chap. 460, § 1. 
 
 §Ib.,§3. 
 
 II R. S., Part i., ch. xii., title ii., art. i., §§ 14 and 36 ; L. 1875, ch. 483, § 1. 
 
 1 lb. 
 ** R. S., Part iii., ch. vii., title vi., art. ii., § 14. 
 
 7
 
 98 
 
 Civil and Criminal Prisoners to be kept Separate. 
 
 « Prisoners arrested on civil process shall be kept separ- 
 ate and distinct from those detained on a criminal charge 
 or conviction, and on no pretense whatever shall prisoners 
 on civil and criminal process be put or kept in the same 
 
 room 
 
 And persons detained for trial must not, and in com- 
 pliance with the spirit of the law those detained for exam- 
 ination should not, be kept or put in the same room with 
 convicts under sentence.! 
 
 Neither should male and female prisoners (except hus- 
 band and wife), be put or kept in the same room.:}: 
 
 a. Offenders against the United States. 
 The keeper of each county prison is to receive every per- 
 son diily committed thereto, for any offense against the 
 United States, and to confine such person in the prison 
 until he shall be: duly discharged ; tliQ United States sup- 
 porting such person during his confinement. § 
 
 b. Bailing Prisoners pending Examination. 
 
 In any examination before a police justice, or justice of 
 the peace of any city or town, of any person charged with 
 an offense bailable by such magistrate, a recognizance with 
 sufficient surety, by two freeholders or householders, resi- 
 dents of the county, may be taken pending such examina- 
 tion. II 
 
 § 84. New York City. 
 
 Places of Detention {Police Department). 
 
 In New York City, prior to the arraignment of the ac- 
 cused in Court, when his detention is necessary, before he 
 
 * R. S., Part iii., ch. vii., title vi., art. ii., § 8. 
 
 t 1847, chap. 460, § 4. 
 
 X Laws 1847, chap. 460, § 5. 
 
 §Ib.,§16. 
 
 i L. 1876, chap 21, p. 15 ; see Code, § 550.
 
 99 
 
 can be taken before a magistrate, he is confined in accord- 
 ance Avitli the following law : 
 
 " If the arrest is made during the hours that the magis- 
 trate does not regularly hold Court, or if a magistrate is 
 not holding Court, the defendant may be detained in a 
 station-house or precinct thereof, until the next regular 
 public sitting of the magistrate, and no longer." It is 
 made likewise " the duty of the (Police) Board," from time 
 to time, to provide suitable rules and regulations to pre- 
 vent the undue detention of persons arrested, * * * 
 subject, however, to the order of the Court committing the 
 person arrested."* 
 
 Station-houses under the control of the police authorities 
 for the temporary detention of persons arrested for offenses, 
 are provided for by law.f The office of the Superintendent 
 of Police may likewise be used for the detention of accused 
 persons.:}: 
 
 All magistrates, when committing witnesses in default of 
 bail, shall commit them to such house of detention for wit- 
 nesses as is provided by the Board of Police. ^ 
 
 Places of Detention [Department of Public Charities and 
 
 Correction). || 
 
 The "Halls of Justice" fronting on Centre street and 
 designated the City Prison,^" and the prisons attached to 
 the police courts, declared to be portions of the City Prison, 
 are used for the detention of persons pending examina- 
 tion.** 
 
 It is made the duty of the keeper of the City Prison to 
 classify and sej)arate T)risoners committed for examination 
 
 * L. 1870, ch. 137, § 57. 
 
 t L. 1860, chap. 25i), §g 20, 58. 
 
 tRev. Corp. Ord. 186G, p. 457, chap. 50, § 10. 
 
 § L. 1870, ch. 137, § 59. 
 
 I L. 18CC, chap. 510, § 4. 
 
 1" Corp. Ord., chap, xiv., title i., art. ii., § 17 (Rev. Corp. Ord., 1845). 
 
 ** L. 1824, ch. 213, § 2.
 
 100 
 
 and trial, and in respect thereto to obey the instructions of 
 the Special (Police) Justices.* 
 
 The Board of Supervisors are authorized to procure 
 places for holding courts in the City and County of New 
 
 Yorkt 
 
 Sometimes the acccused person, after his arraignment 
 
 before the magistrate, is remanded to the custody of the 
 officer bringing him, who confines his prisoner at a station- 
 house. The Code contemplates that, instead of such dis- 
 position, in every case the prisoner be committed to the 
 keeper of the City Prison, in New York City, and to the 
 sheriff in all other parts of the State. | 
 
 When the defendant is held to answer at the conclusion of 
 the examination, he is committed to the City Prison, in New 
 York City ; elsewhere to the sheriff of the county. 
 
 * Corp. Ord., chap, xiv., title i., art. ii., § 18 (Rev. Corp. Ord., 1845). 
 t L. 1861, chap. 42. 
 i Code, § 193.
 
 ORDER AND MANNER OF PROCEEDING ON EXAM- 
 INATION AFTER ARREST. 
 
 Chapter I. The Prosecution. 
 
 II. The Defense. 
 
 III. Separation of Witnesses. 
 
 IV. Waiving Examination. 
 
 CHAPTEK I. 
 
 THE PROSECUTION. 
 
 Section 85. Order of Proceeding. 
 a. The Code. 
 
 86. Witnesses, how to be Examined. 
 
 87. Prisoner to be Present. 
 
 a. With Counsel if desired. 
 
 88. How Depositions to be taken down. 
 
 a. The Code. 
 
 § 85. Order of Proceeding. 
 
 When the person accused and the witnesses to be ex- 
 amined are before the magistrate, he is to examine the 
 complainant and the witnesses produced in support of the 
 prosecution, on oath, in the presence of the prisoner, in 
 regard to the offense charged.* 
 
 * Nun. and Walsh, 305.
 
 102 
 
 The accused and his witnesses are next to be heard, the 
 former, however, not on oath. But of the defense later on 
 (chapter II. of this Part). 
 
 In most if not all the States, the manner of conducting 
 examinations is provided for by statute.* 
 
 a 
 
 . The Code. 
 
 On the prisoner being brought before a magistrate upon 
 arrest, either with or without a warrant, and preliminary 
 to entering on the examination, the magistrate must inform 
 him of the charge against him and of his right to the aid 
 of counsel in every stage of the proceedings.! 
 
 The defendant must be allowed a reasonable time to send 
 for counsel, and the magistrate must, upon the request of 
 the defendant, require a peace officer to take a message to 
 such counsel in the town or city, as the defendant may 
 name, and such officer must without delay and without fee 
 perform that duty.:|: 
 
 "The magistrate, immediately after the appearance of 
 counsel, or if none appear and the defendant require the 
 aid of counsel, must, after waiting a reasonable time there- 
 for, proceed to examine the case, unless the defendant 
 waives examination and elects to give bail, in which case the 
 magistrate must admit the defendant to bail, if the crime 
 is bailable, as jDrovided in § 210 " (post. Part VII., ch. IX).|| 
 
 " At the examination, the magistrate must, in the first 
 place, read to the defendant the depositions of the witnesses 
 examined on the taking of the information, and if the de- 
 fendant request it or elects to have the examination, must 
 summon for cross-examination the witnesses so examined, 
 if they be in the county, and must also issue subpoenas for 
 additional witnesses required by the prosecutor or the 
 defendant."! 
 
 This applies obviously only to arrests by warrant. 
 
 * 1 Arch. Cr. L. and Pr., 132, 139, 140. 
 t § 188. X § 180. 
 
 1 § 190. 1 § 194.
 
 "The witnesses must be examined in the presence of the 
 defendant and may be cross-examined in his behalf." * 
 
 This latter direction refers to the mode of examining 
 the witnesses when the arrest is without a warrant ; for, 
 when the arrest is by warrant, the depositions of the wit- 
 nesses examined on the taking of the information stand 
 for their direct examination. 
 
 Proceedings before Magistrate after the Coroner s Inquisition 
 not Applicable to New Yoi^h City.f 
 
 If the defendant be arrested before the Coroner's inquisi- 
 tion can be filed, as provided for by the Code,:t the Coroner 
 must deliver it with the testimony to the magistrate before 
 whom the defendant is brought, as provided by the Cor- 
 oner's warrant,! who must return it with the depositions 
 and statement taken before him, in the manner prescribed 
 by § 221 of the Code (post, § 104). || 
 
 " The magistrate, when the defendant is brought before 
 him," under the Coroner's warrant, " must proceed to ex- 
 amine the charge contained in the inquisition and hold the 
 defendant to answer, or discharge him therefrom in the 
 same manner, in all resj)ects, as upon a warrant of arrest 
 on an information."! 
 
 Should the testimony of the witnesses examined before 
 the Coroner's jury and the inquisition thereon have been 
 filed by the Coroner with the Clerk of the Court of 
 Sessions of the county, or of a city court, having power to 
 inquire into the offense by the intervention of a grand jury, 
 as the Coroner is obliged to do forthwith in case the de- 
 fendant is not arrested before the same can be filed,** the 
 clerk with whom the inquisition is filed must, without 
 delay, furnish to the magistrate a certified copy of it, and 
 of the testimony returned therewith.tt 
 
 * § 195. t L. 1881, ch. 465, § 7. 
 
 t § 778. ^5 Code, § 781. 
 
 II Code, § 779. 1 lb., § 783. 
 
 ** lb., §§778 and 779. ff lb., § 784. j
 
 104 
 
 § 86. Witnesses, lioiv to he Examined. 
 
 The witnesses, with the exception of the defendant, are tO' 
 be examined under the same rules as govern on the trial. 
 
 They should be first sworn and then examined, instead of 
 taking the examination first and then swearing them to the 
 truth of the statement.* 
 
 § 87. Prisoner to he Present. 
 
 The defendant must be present, and have an opportunity 
 to cross-examine, when the direct examination is closed, 
 and if that right is not enjoyed, the deposition will not be 
 evidence on the trial.f 
 
 The defendant, by the Constitution of the United States,:}: 
 is to be confronted with the witnesses against him. 
 
 It is not suflicient if the deposition be read over to the 
 prisoner. The prisoner shall be present while the witness 
 actually delivers his testimony, so that he may know the pre- 
 cise words he uses, and observe throughout the manner and 
 demeanor with which he gives his testimony. Therefore, 
 in a certain case, that part of the testimony taken on an 
 examination, which was read OA'er to the prisoner but not 
 heard by him was not admitted, but the subsequent part at 
 which the prisoner was present was admitted. § 
 
 Richards, Chief Baron, thought if the witness was 
 resworn and reasserted what he had before said by 
 assenting to the deposition when slowly read over to him 
 
 * King V. Kiddy, 4 Dowl. & Ryl., 734. 
 
 t King m. Paine, 5 Mod., 163 ; Woodcock's Case, 1 Leach, 500 ; Dingler's. 
 Case, 2 Id., 561 ; King m. Callaghan, 1 MacX alley's Ev., 385; Rex vs. 
 Forbes, 1 Holt's N. P., 597, note ; The State vs. Hills, 3 Hill's Law Rep., 
 So. Car., 607 ; 2 Stark. Evi., 488-493 ; 2 Hawk (by Curwood), 594, § 24 ^ 
 2 Russ. on Crimes, 660 ; 1 Phil. Evi., 369, 373, ed. of 1839 ; Roscoe's Crim. 
 Ev., 50 and 51; People vs. Restell, 3 Hill, 300; Bull X. P., 241,243; 1 
 Chit. Cr. L.,76, 79; Cowen's & Hill's notes to Phil. Ev., 938, note 369^ 
 King vs. Crowther, 1 T. R. , 125. 
 
 X Art. 6, U. S. e'oiist. 
 
 § York Spring Assizes (1814), Rex vs. Forbes, 1 Holt's Rep., 593, note ; see 
 King vs. Paine, 5 Mod. 163.
 
 105 
 
 in the presence of the prisoner, the deposition would be 
 admissible on the trial.* 
 
 The Chief Baron's attention having subsequently been, 
 called to the foregoing case, took the opinion of the twelve 
 judges on the point of law, by whom he was sustained, one 
 judge dissenting. 
 
 In another case the oath was administered to the witness 
 before any part of his evidence was reduced to writing. 
 The prisoner was brought into the room after the examina- 
 tion commenced and before the last line of the deposition 
 was taken down. The oath was again administered to the 
 witness in the presence of the prisoner, and the whole of 
 what had been previously written down from the mouth of 
 the witness was, in his presence, read over ; the witness 
 was then further examined. Held regular, t 
 
 Chitty says, I that " if the original information and 
 evidence taken before the warrant was issued contain 
 a complete case, it is the practice, after reswearing 
 the accused and his witnesses, to read over their former 
 depositions in their presence, and that of the prisoner, and 
 to state to the latter that he is at liberty to ask the prose- 
 cutor and witnesses any questions respecting the charge 
 against him." This practice, may be tolerated, though it 
 clearly is not the most proper course.§ The original com- 
 plaint made in a criminal proceeding for the arrest and 
 examination of an alleged offender, has spent its force when 
 the warrant of arrest is issued. || 
 
 a. With Counsel, if desired. 
 
 Primitive Practice. 
 
 The examination in its primitive state was not in the 
 nature of a judicial inquiry, and counsel for the prisoner 
 
 * Eeg. vs. Smith, 1 Holt's Rep., 614. 
 
 f 3 Hill, 289. 
 
 X 1 Chitty's Crim. Law, 80. 
 
 § 3 Hill, 802, 
 
 I Redmond vs. State, 13 Kansas, p. 172.
 
 106 
 
 had no right to appear and represent him. It is said if 
 such right were conceded there could never be any private 
 examinations, which were very frequent then, and if any 
 one had a right to be present, intelligence of what passed 
 could be conveyed to accomplices.* 
 
 Present Vieios. 
 
 " That in every trial, in any court whatever, the party 
 accused shall be allowed to appear and defend in person 
 and with counsel as in civil actions," is a right guaranteed 
 by the Constitution of this State,t and provided for in some 
 way in all civilized countries, i 
 
 § 88. How Depositions to he taken down. 
 
 The depositions should be taken as nearly as possible in 
 the words used by the witness, so that the defendant will 
 lose as little as the nature of the case will permit by read- 
 ing the depositions on the trial, instead of having the oral 
 examination of the witnesses before the jury. || 
 
 a. 21ie Code. 
 
 " The testimony given by each witness must be reduced 
 to writing, as a deposition, by the magistrate or under his 
 direction, and authenticated in the folloAving manner : 
 
 1. The authentication must state the name and age of 
 the witness, his place of residence, and his business or 
 profession ; 
 
 2. It must contain the questions put to the witness, and 
 his answers thereto ; each answer being distinctly read to 
 him as it is taken down, and being corrected or added to, 
 until it is made conformable to what he declares to be the 
 truth ; 
 
 *1 B. & C, pp. 54 and 55. 
 
 t Const. N. Y., art. i., §6. 
 
 X See Code on this subject, ante § 85, a. 
 
 I People vs. Restell, 3 HiU, 300.
 
 107 
 
 3. If a question put be objected to on eitlier side, and 
 overruled, or the witness decline answering it, tliat fact, 
 witli the ground on which the question was overruled or 
 the answer declined, must be stated ; 
 
 4 The deposition must be signed by the witness, or if 
 he refuse to sign it, his reason for refusing must be stated 
 in writing as he gives it ; 
 
 5. It must be signed and certified by the magistrate."* 
 
 The evil proposed to be corrected by the foregoing pro- 
 vision is well set forth in the following note contained in 
 the Eeport of the Commissioners submitting a Criminal 
 Code in December, 1849 : 
 
 "In taking down the testimony of the witnesses, the 
 practice has been very common, to take such portions of 
 their statements as the magistrate deems material ; omit- 
 ting entirely the questions put, and professing to give 
 nothing more than the substance of the evidence. When 
 it is remembered how essential it is, in testing the credi- 
 bility of witnesses who have been previously examined, to 
 point with certainty to their former statements on oath, 
 relating to the same subject, and how important this right 
 may become to the people as well as to the defendant, it 
 will be readily admitted that the testimony in the precise 
 form in which it is given, leaving no room for doubt or 
 misconstruction as to its meaning, should be carefully pre- 
 served. Daily experience shows that in the mode in which 
 depositions are taken by the examining magistrate, when 
 the attempt is made to impeach a witness by the produc- 
 tion of his deposition, nothing is more common than his 
 escape from the force of the contradiction, by his own 
 statement and that of the magistrate, that the substance of 
 the testimony only, and not the language of the witness, 
 had been taken. t 
 
 * § 204. 
 
 f Proposed Crim. Code (1850), note to § 203, pp. 95, 96.
 
 108 
 
 CHAPTEE 11. 
 
 THE DEFENSE. 
 
 Section 89. Introductory Remarks. 
 
 90. Early Conceptions. 
 
 a. State's Evidence. 
 
 91. Revised Statutes and other Provisions. 
 
 92. The Spirit of the Examination of the Prisoner. 
 
 93. Irons on the Prisoner. 
 
 94. The Statute permitting Prisoner to Testify. 
 
 95. The Code. 
 
 § 89. Introductory Hemarks. 
 
 The further back we search, the greater will be our sur- 
 prise as to the manner of conducting legal proceedings, 
 viewed from the standpoint of to-day ; but justice to each 
 age demands a scrutiny with reference only to its past 
 If in that view we compare each mode of j)rocedure with 
 the one immediately preceding, some innovation will be 
 found worthy of commendation, and the feeling of indigna- 
 tion that possesses one in reading of the cruelties of the 
 past, will resolve itself into one rather of sympathy for the 
 benighted races that lived the best they knew how, and 
 according to the best understanding of the best men of 
 their day. 
 
 In this connection it must be borne in mind, that while 
 the civil practice received a powerful reinforcement from 
 the Roman Law, the criminal procedure was less fortunate. 
 
 Criminal law is not comprised in Justinian's Institutes, 
 the classical jurist having thought that public law was 
 not a fit subject for an institutional or elementary treatise.
 
 109 
 
 The very short title, " De Piiblicis Judiccis," is the only 
 part of this treatise which relates to crimes.* 
 
 § 90. Early Conceptions. 
 
 The early English trial by the ordeal and that of battle 
 -was based on the popular belief that Providence would 
 always intervene to save the guiltless. An accusation once 
 made, the presumption of guilt followed, and the prisoner 
 must demonstrate his innocence. This was the basis of the 
 mode of trial. The abolition of the ordeal and the disuse 
 of the trial by battle was an abandonment of the test of 
 innocence designated by superstition. The ease with 
 which suspected persons, thereafter relieved of the neces- 
 sity of appealing to superhuman agencies or to the God of 
 battles, might clear themselves by human testimony, was 
 not relished by the spirit of the times. If the victim could 
 not be convicted by a ceremony certain to be fatal to his 
 hopes unless released by corruption in the administration 
 of the tests, then some other way had to be devised to 
 prove that an accused person, if it was so desired, must be 
 guilty. 
 
 " It was a natural transition from force as a demonstra- 
 tion of guilt, to force applied to compel confession of guilt. 
 The physical tests conceived in superstition gave way to 
 force," and for the purpose of extorting a confession from 
 an accused person torture, as by water or fire, by the boot 
 or thumbkin, or by the rack or wheel, was resorted to. 
 
 On " the depositions of approvers extorted in goal by 
 threats or by torture, or the criminal's own confession, on 
 the rack or in answer to a judge's examination, must have 
 been the evidence upon which men were hanged and women 
 were burnt." t 
 
 In the reign of John some prisoners made the experiment 
 of standing mute when brought before the justices, and 
 
 * Student's Edition, pp. 370, 371, Campbell's Roman Law, 156. ■ 
 f Pike's Hist, of Crime, vol. 1, p. 387.
 
 110 
 
 their fate was the same as if they had been convicted by 
 the "judgment of God." Then a year or two later such 
 accused were sent to prison /or^e et dure, which about the 
 reign of Henry IV. was transformed into the ''peine forte 
 et dure" or torture of the press.* 
 
 It has indeed been denied that the use of torture was 
 known to the English law. That, it was known, however, 
 is certain, but it was not legaUij permitted except by license 
 from the king or council. It could be applied by order of 
 a judge to make a mute prisoner plead or to punish him 
 for not pleading, t 
 
 Macaulay says that " torture, which had always been de- 
 clared illegal, and which had recently been declared illegal 
 even by the servile judges of that age, was inflicted for the 
 last time in England in the month of May, 1640." 
 
 a. State's Evidence. 
 
 A curious custom, peculiar to the English jurisprudence, 
 allowed a man in the thirteenth century indicted for a capi- 
 tal offense to turn " approver," or king's evidence, by 
 confessing the crime, and charging or appealing any one he 
 chose as an accomplice ; but before receiving a pardon he 
 was obliged to pledge himself to convict his accomplice or 
 accomplices, if required, by the duel; this appeal was usually 
 settled by the single combat.:}: 
 
 § 91. Revised Statutes and other Provisions. 
 
 The Kevised Statutes provide that the magistrate shall, 
 after the examination of the complainant and his wit- 
 nesses, inform the prisoner of the charge made against 
 him, and give him a reasonable time to send for and 
 advise with counsel ; then after further informing him 
 that he is at liberty to refuse to answer any question that 
 
 * Pike's Hist, of Crime, vol. 1, p. 210. 
 
 t lb. , vol 2, pp. 8(5 and 87. 
 
 X Bracton, lib. iii., tract, ii., cap. 33, g 2, and 34, § 3.
 
 Ill 
 
 may be put to liim, the magistrate shall proceed to examine 
 the prisoner in relation to the offense charged, not on oath, 
 before the witnesses for the defense are produced, at which 
 examination neither the witnesses produced on the part 
 either of the prisoner nor of the prosecution shall be pres- 
 ent. The counsel of the prisoner, if desired, may be 
 present throughout the whole examination.* 
 
 As to what extent these provisions are affected by those 
 of the Code a comparison with the latter (post, § 95) will 
 determine. 
 
 When Examination of Defendant Unnecessary. 
 
 As has been heretofore indicated, a magistrate is not 
 required to take the examination of a prisoner charged with 
 misdemeanor, except where such magistrate shall deem 
 it material so to do, or where such examination shall be 
 required by the prisoner.f 
 
 It is likewise not necessary for any magistrate to take the 
 examination of any person brought before him, charged 
 with an offense triable before such magistrate, in any case 
 where such person shall elecfc to be tried before him,:j: or at 
 Special Sessions outside of New York County,§ nor when 
 he waives his examination, which he can always do. || 
 
 § 92. The Spirit of the Examination of the Prisoner. 
 
 The nature of this examination of the prisoner is pecu- 
 liar, as will be seen. The mode in which it is to be conducted 
 would better be understood were the statute to read " that 
 the magistrate shall then give the prisoner a hearing," or 
 " hear any statement he may choose to make." 
 
 The spirit of this examination is well set forth by Chitty 
 in these words : 
 
 " At the common law, the maxim, nemo tenebatur jprodere 
 se ipsum, prevailed in its full strictness, and the guilt of an 
 
 * Part iv., chap, ii., title ii., §§ 14-18. 
 
 f Laws 1830, ch. 320 ; § 60 ; R. S., Part iv., ch. ii., title ii., § 23. 
 
 X Laws 1845, ch. 180, § 17 ; R. S., Part iv., ch. ii . title ii., §27. 
 
 § Code, § 732. 
 
 I Code, §196.
 
 112 
 
 offender was not to be wrung out of himself, but rather to 
 be discovered by other means and other men" * and though 
 his examination is authorized, it is " not compulsory on 
 the prisoner to accuse himself. At common law, his volun- 
 tary confession was always available in evidence against him. 
 The examination has been considered rather as a privilege 
 in favor of the party accused, afforded by law for the bene- 
 fit of an innocent man, who, perhaps, may on examination 
 ■clear himself from suspicion, and then he will immediately 
 regain his freedom, than as an additional i3eriL"t And, 
 confirmatory of this theory, we have the case wherein a 
 prisoner's examination before a magistrate who committed 
 Mm was produced, and on being examined in relation 
 thereto the magistrate stated that he had examined the 
 prisoner at a considerable extent, in the same manner as 
 he was accustomed to examine a witness. Richards, Lord 
 C. B., in rejecting this examination says : 
 
 " I think I am not at liberty to suffer this examination to 
 b)e read. No matter whether a prisoner be sworn or not. 
 An examination of itself imposes an obligation to speak the 
 ■truth. If a prisoner will confess, let him do so voluntarily. 
 Ask him what he has to say ? But it is irregular in a 
 magistrate to examine a prisoner in the same manner as a 
 witness is examined." :|: And further, we recall the consti- 
 tutional injunction : " No person shall be compelled in a 
 criminal case to be a witness against himself." § 
 
 The magistrate is not bound to caution the prisoner that 
 his confession must be voluntary and that it will be 
 evidence against him. || But the accused shall be informed 
 that he is at liberty to refuse to answer any questions that 
 may be put to him,l and that he must not expect any favor 
 
 * 4 Blackstone, p. 293 (1792J. 
 t 1 Chitty C. Law, page, 83. 
 t Rex vs. Wilson, 1 Holt's E., 597. 
 
 § Art. 5, Amendments, Const. U. S. ; N. Y. Const., 1846, art. i., § 6. 
 I People vs. Maxwell, 1 Wh. Cr. Cas., 163; see People vs. McMahon, 2 
 Park Cr. Rep., 663 ; People vs. Hendrickson, 1 Park Cr. R., 416. 
 IF R. S., Part iv,, ch. ii., title u., § 15.
 
 iia 
 
 if he confesses, but the magistrate ought not to dissuade 
 him from confession.'^ 
 
 The prisoner's examination need not be signed by him, 
 in order to make it evidence. t Therefore a confession of 
 guilt by a prisoner on his examination before a magistrate 
 may be given in evidence on the trial, though the magis- 
 trate has neglected and the prisoner has refused to sign it. 
 
 § 93. Irons on Prisoner. 
 
 Apj^rehensions for the safety of a prisoner ought to be 
 the only apology for presenting him in irons before a magis- 
 trate. 
 
 In one case X a distinction was taken between the time of 
 arraignment and the time of trial, and accordingly the 
 prisoner stood at the bar in chains during the time of his 
 arraignment. At the trial irons should be removed. § 
 
 § 94. The Statute Permitting Prisoners to Testify. 
 
 " In the trial of all indictments, complaints, and other 
 proceedings against persons charged with the commission of 
 crimes or offenses, and in all proceedings in the nature of 
 criminal proceedings in any and all courts, and before any 
 and all officers and persons acting judicially, the person so 
 charged shall, at his own request, but not otherwise, be 
 deemed a competent witness ; but the neglect or refusal of 
 any such person to testify shall not create any presumption 
 against him. 11 
 
 Under the foregoing, unless prohibited by the Code, by 
 implication, the prisoner, if he requests it, may, on the 
 examination before the magistrate, be sworn and examined 
 
 *Rexra. Green, Neville & Manning's Mapf. Cases, vol. i., p. oGl. 
 f People vi. Johnson, IWh. Cr. Gas., 193; Lamb'sCase, 2 Leach, 552, 637, 
 overruling case in Starkie's Rep., vol. 2, p. 484. 
 
 X Layer's Case, A. D. 1722, 4 Black Com., 322 ; 6 St. Tr. 230. 
 § Bracton, 137; 3 Just.. 34, 35 ; Lims., 212 ; 2 Hale, 219 ; 2 St. N., 803 ; 2 
 Hav?k., 434. 
 I! People vs. Brandon, 42 X. Y., p. 265 ; L. 1809, oh. 078.
 
 114 
 
 as a witness on his own behalf, and then will be treated as 
 any other witness offering himself. 
 
 § 95. The Code. 
 
 It is enacted by the Code respecting the examina- 
 tion of the prisoner and his witnesses, that " when the ex- 
 amination of the witnesses on the part of the people is 
 closed, the magistrate must inform the defendant, that it is 
 his right to make a statement in relation to the charge 
 against him (stating to him the nature thereof) ; that the 
 statement is designed to enable liim, if he sees fit, to answer 
 the charge and to explain the facts alleged against him ; 
 that he is at libert}- to waive making a statement ; and that 
 his waiver cannot be used against him on the trial." * 
 
 " If the defendant waive his right to make a statement, the 
 magistrate must make a note thereof, immediately following 
 the depositions of the witnesses against the defendant." t 
 
 " If the defendant choose to make a statement, the magis- 
 trate must proceed to take it in writing, without oath, and 
 must put to the defendant the following questions only : 
 
 " What is your name and age ? 
 
 " Where were you born ? 
 
 " Where do you reside, and how long have you resided 
 there ? 
 
 " What is your business or profession ? 
 
 " Give any explanation you may think proper of the cir- 
 cumstances appearing in the testimony against you, and 
 state any facts which you think will tend to your exculpa- 
 tion." X 
 
 " The answer of the defendant to each of the questions 
 must be distinctly read to him as it is taken down. He 
 may thereupon correct or add to his answer, and it must 
 be corrected until it is made conformable to what he de- 
 clares to be the truth." § 
 
 * § 196. X § 198. 
 
 t § 197. . § § 199.
 
 115 
 
 "The statement must be reduced to writing bv the masis- 
 trate, or under his direction, and authenticated in the 
 following manner : 
 
 1. The authentication must set forth in detail that the 
 defendant was informed of his rights, as provided in section 
 196 " (ante, this section), " and that after being so informed 
 he made the statement ; 
 
 2. It must contain the questions put to him, and his 
 answers thereto, as provided in sections 198 and 199 " 
 (ante, this section). 
 
 " 3. It may be signed by the defendant, or lie may refuse 
 
 to sign it ; but if he refuse to sign, his reason therefor must 
 
 be stated as he gives it. 
 
 4. It must be signed and certified by the magistrate." * 
 " After the waiver of the defendant to make a statement, 
 
 or after he has made it, his witnesses, if he produce any, 
 
 must be sworn and examined." t 
 
 Copies of the Depositions, etc. 
 
 The magistrate or clerk must furnish to, or permit to be 
 made by, the defendant or his counsel a copy of the 
 depositions and statement, on payment of fees. % 
 
 Proceedings against Corporations. 
 
 Corporations to be proceeded against by service of 
 summons on information laid. As to the form, service 
 thereof, and proceedings thereon, see Code, §§ 675-682. 
 
 *§200. t§20]. t Code, §206.
 
 no 
 
 CHAPTEE III. 
 
 § 96. Sepamtion of Witnesses, etc. 
 
 The section of the Code respecting the separation of 
 witnesses is the same as that of the Eevised Statutes on 
 the subject,'-- and is as follows : 
 
 " The witnesses produced on the part either of the people 
 or of the defendant cannot be present at the examination of 
 the defendant ; and while a witness is under examination, 
 the magistrate may exclude all witnesses who have not 
 been examined. He may also cause the wdtness^s to be 
 kept separate, and to be prevented from conversing with 
 each other, until they are all examined." t 
 
 This restriction on the defense is an important one and of 
 great advantage and value to the prosecution. The prisoner 
 is obliged thereby to make his statement before hearing the 
 evidence of his witnesses ; and since the examination of the 
 prisoner is private, that is, apart from all the witnesses, we 
 see that the hands of the prosecution are further strength- 
 ened by the witnesses for the defense being put on the 
 stand ignorant of the statements of the prisoner. These 
 safeguards, deemed proper in examinations, have not as 
 yet been applied to criminal trials. 
 
 While the defense is thus controlled, perfect freedom is 
 accorded to the people. 
 
 Were the complainant's evidence, who usually has some 
 special interest in a conviction, required to be given pri- 
 vately and before his witnesses, the prosecution would not 
 have any advantage over the defense in this behalf and both 
 be placed on the same footing. 
 
 " Part iv., chap, ii., title ii., § 18. 
 t § 202.
 
 117 
 
 The power to exclude from hearing all witnesses who 
 have not been examined, if exercised, could be made to 
 produce this result. The prisoner being necessarily present 
 throughout, and exclusion not enforceable against him 
 was probably the reason for the legislative direction that 
 his statement shall be taken privately and before the evi- 
 dence of his witnesses. 
 
 The Code has also the following provision : 
 
 " The magistrate must also, upon the request of the 
 defendant, exclude from the examination every person, 
 except the clerk of the magistrate, the prosecutor and his 
 counsel, the attorney general, the district attorney of the 
 county, the defendant and his counsel, and the officer 
 having the defendant in custody." * 
 
 The foregoing section is declared to be in furtherance of 
 the spirit of the provision already in existence relating to 
 the exclusion of witnesses who have not been examined, 
 and is defended in this wise : 
 
 " The policy of the statutes has always been to prevent 
 the concocting of a charge against a defendant upon col- 
 lusive or false testimonv. The law excludes the witnesses 
 while another witness or the prisoner is under examination, 
 with this view. The object of the rule maybe wholly 
 defeated, if, though not present, one witness may be in- 
 formed of the testimony of another by persons who are 
 present. 
 
 " Another advantage will result from the adoption of 
 this section. If the examination must necessarily be public 
 the consequence may be that the testimony upon the mere 
 preliminary examination will be spread before the com- 
 munity, and a state of opinion created, which, in cases of 
 great public interest, will render it difficult to obtain an 
 unprejudiced jury. The interests of justice require that 
 the case of the defendant should not be prejudiced if it can 
 be avoided ; and no one can justly complain, that until he 
 
 §203.
 
 118 
 
 is put upon his trial, the clangers of this j)re -judgment are 
 obviated. 
 
 " To guard the rights of the defendant against a secret 
 examination, the section provides that it shall not be con- 
 ducted in private, unless at his request." - 
 
 We have been taught that a free and open administration 
 of justice will preserve it in its purity and efficiency. This 
 spirit will regard with regret that any one should have it 
 within his power to compel a secret judicial hearing fraught, 
 as experience has shown it must be, with great danger and 
 having in its favor very doubtful advantages. 
 
 * Note to § 203. Revisers' Report Cr. Code (1850).
 
 lU) 
 
 CHAPTEE IV. 
 
 WAIVING EXAMINATION. 
 
 Section 97. General Remarks. 
 98. The Code. 
 
 § 97. General Remarks. 
 
 Tlie right to waive an examination and give bail has 
 been claimed on a number of occasions, the prisoner con- 
 tending that the examination is his privilege, which he can 
 avail himself of if he chooses, and that the same is entirely 
 within his control. 
 
 To sustain this theory, an expression in a case decided 
 in the highest tribunal in this State * is relied on, wherein 
 the validity of a bond to answer was questioned because it 
 made no mention of an examination having taken place. 
 
 The learned justice, in disposing of the question raised 
 respecting the bond, says : " Although an offender is en- 
 titled to the benefit of all the forms and provisions con- 
 tained in the statute, in relation to his arrest, examination, 
 and order for commitment, before he can be compelled to 
 enter into recognizance to appear and answer, yet he may 
 waive those forms, and when charged with an offense may 
 prefer to give bail at once, without waiting for an arrest or 
 an examination, according to the forms prescribed in the 
 statute." 
 
 The bond was sustained on the further ground, that the 
 rule as to a bond differs from that applying to . a commit- 
 ment, because in the latter case the assent of the party 
 could not be presumed or supposed, which ground alone 
 
 * Champlain vs. The People, 'l X. Y., p. 82.
 
 120 
 
 would have been a complete answer to the objection ad- 
 vanced against the recognizance. 
 
 To uphold the claim that the defendant may waive the 
 examination, would be in direct conflict with the history of 
 the origin and growth of the examination after arrest. 
 
 Only a part of the hearing on the arrest is for the benefit 
 of the accused exclusivelv, viz., — his own examination and 
 that of his witnesses, — and this part cannot be insisted on. 
 It should remain his privilege to dispense with it. But the 
 examination of the complainant and his witnesses is of 
 interest as well to the j^ublic. 
 
 We have seen that the purpose in introducing examina- 
 tions was to hold justices to a better accountability for any 
 abuse of the bailing power (ante, § 77) ; that the examin- 
 ation of the witnesses for the prosecution could in certain 
 contingencies be used as evidence on the trial, and that it 
 might otherwise be valuable in comparing the evidence on 
 the preliminary hearing with that on the trial. These are 
 matters which concern the people, and it can never have 
 been contemplated that the accused should be enabled to 
 deprive the government of proper safeguards and powers not 
 prejudical to the rights of prisoners. 
 
 In the case referred to, these public considerations Avere 
 probably lost sight of when the court remarked that the 
 defendant could waive the whole examination. 
 
 Neither is it suggested by what means the magistrate is 
 to be relieved of the duty to take the evidence of the pros- 
 ecution imposed upon him, it seems, in all cases by the 
 common law, and specifically by statute when the arrest is 
 by warrant. 
 
 The situation in other words may be taken to be this : 
 that the accused is now permitted to avail himself of the 
 opportunity afforded by the existence of the examination to 
 demonstrate his innocence without being obliged to await 
 the trial, by being present at it and empowered to cross- 
 examine the witnesses called against him, give his own state- 
 ment, and call witnesses in his own behalf. These privi-
 
 121 
 
 eges now afforded by the examination, are the outcome of 
 later times, not at all contemplated in its inception. 
 
 As soon as the bond is accepted it must be borne in mind 
 all proceedings before the magistrate are terminated, and he 
 loses jurisdiction of the case. He cannot take the evidence 
 of the prosecution after the recognizance is accepted, oth- 
 erwise the taking of the bond and the departure of the 
 prisoner from the court would not prevent the discharge 
 by the magistrate of the duty imposed on him, and the 
 right of waiver of the examination might not conflict Avith 
 the directions of the law respecting the examination. Were 
 this claim of the right of waiver allowed what would be the 
 practical result considered more specifically and in 
 detail. 
 
 Take the case of a prisoner arrested without a warrant, 
 when there is no written complaint. Could he not abso- 
 lutely keep the Court in the dark if his claim to give 
 bail at once after arrest is well founded. Nothing would 
 be in order in that event but the taking of the bond, 
 and thereupon the jurisdiction of the magistrate ends. In 
 taking the bond difficulties w^ould be encountered at everv 
 step, the magistrate would be in no position to designate 
 the offense in the bond nor fix the amount of bail, nor be 
 able to ascertain the names of witnesses to bind over under 
 the statute. If the nature of the crime is not ascertained, 
 the justice will be at a loss to insert the court where the 
 bondsman is to produce his principaL It will appear from 
 the foregoing reflections, that the prisoner can not be 
 bailed as contemplated by law, without the magistrate be- 
 ing empowered to enter into an examination, as the data to 
 be included in the bond would not be forthcoming unless 
 obtained from the prisoner, who would usually be an un- 
 safe informant. 
 
 If the prisoner has the right to waive an examination 
 when he offers bail, it should follow he has the same right 
 when he does not seek to be bailed, but asks to be com- 
 mitted. Similar difficulties w^ill be encountered in that
 
 1-22 
 
 contingency in prei3aring tlie commitment and bringing 
 the self-confessed criminal to trial. 
 
 Committing magistrates are to determine whether an 
 accused person is to be put on his trial or not ; that is, to 
 sift charges and dismiss them, or prepare the proofs for the 
 trial. This department of justice has an important duty 
 to perform ; to see to it that no persons are sent to trial with- 
 out a probability of their being convicted on the proofs 
 transmitted. 
 
 Were it the right of persons to waive an examination and 
 give bail at once, the utility of this important arm of the 
 laAv in the respect just referred to would be impaired. 
 
 Besides, it is in the discretion of the trial court whether 
 to accept a plea of guilty or not. The prosecution can decline 
 to receive it and' insist on j^resenting its proofs in order that 
 full justice may be done, and in the same spirit it would 
 seem to be a duty on the part of committing magistrates 
 to examine accusations to ascertain the gravity of the 
 charge and to see to it that no innocent person subject him- 
 self to a trial through a mistaken conception, involving the 
 government in an unwarranted expense. 
 
 A few years ago this question came up in the City of 
 New York, and was decided by the magistrate presiding," 
 he making use of the following language : 
 
 " It is apparent that " the statute t " reqiiires the magis- 
 trate to examine the complainant and the witnesses pro- 
 duced in suj)port of the prosecution on oath. Nothing is 
 said about using the affidavits taken before the warrant of 
 arrest issued. The statute contemplates that all the evi- 
 dence requisite to establish the crime against the offender 
 shall, upon his being brought before the magistrate, be 
 taken in his presence. The defendant has no power by 
 any waiver of his to dispense with the discharge of the 
 duties devolved upon the magistrate by the express terms 
 of the statute. The magistrate, in taking testimony in 
 
 * People vs. Thompson, March 30, 1879, oth Dist. Police Ct., N.Y. City. 
 t 3 R. S., Part iv., ch. ii., title ii., § 13.
 
 123 
 
 su})poit of tlie i)rosecution where the prisoner is brought 
 before him, is not limited to evidence ' in regard to the 
 offense charged,' but he is expressly permitted to take 
 testimony ' in regard to any other matters connected with 
 such charge which such magistrate may deem pertinent.' 
 The statute is mandatory and absolute — -an examining 
 magistrate is bound to take the examination of the com- 
 plainant and his Avitnesses until it is clearly manifest that no 
 crime has been committed. That appearing to the satisfac- 
 tion of the magistrate, it of course follows that the object 
 of the statute is fulfilled and his jurisdiction ended. Sup- 
 j)ose the prisoner be not the real offender, or that he has 
 accomplices — can he escape under a technicality, or shield 
 his aiders or abettors by waiving an examination. The 
 statute clothes the magistrate with large discretionary 
 powers in regard to the evidence to be taken on such a 
 j)roceeding. As already stated, the magistrate is not con- 
 fined to evidence proving the offense itself, but may take 
 testimony ' in regard to any other matters connected with 
 such charge,' in order to show that other j^arties are equally 
 guilty with the persons arrested, or to ascertain the grade 
 of the offense, and to fix the amount of bail. A person 
 might be arrested for a misdemeanor, and upon examina- 
 tion it might turn out that a felony has been committed." 
 The law contemplates that the magistrate may make an 
 examination before him very searching and thorough, in 
 the interest of public justice. 
 
 " New and essential testimony is frequently disclosed in 
 the course of the investigation, and it is only through the 
 methods of this statute that they can be revealed and 
 
 secured. 
 
 4f * v:- -^ * * * * •>:- T-- 
 
 " It is true, in this city, on account of the large amount 
 of business which comes before criminal magistrates, a 
 practice has grown uj) regarding the affidavits taken prior 
 to the arrest, as a substitute for the examination of ' the 
 
 * Redmond v. State, 12 Kans. 172.
 
 124 
 
 complainant and the witnesses produced in support of the 
 prosecvition.' Whether defendants can ask to have that 
 course pursued, and the complainant or the prosecutor can 
 ^ive a consent which will justify such a practice on the part 
 of the magistrate, need not now be considered. But this 
 court, it is ventured to say, has never decided that the ac- 
 cused can demand it as a right, when the magistrate decides 
 that the intelligent discharge of his duty requires him to 
 take the examination. If such a course can be taken, it 
 can only be on the consent of the prosecution, and not 
 upon the consent of the defendant. There are certain 
 things which the defendant can waive. He can waive his 
 own examination and that of the Avitnesses in support of his 
 defense. When his examination is read to him he can 
 waive making any corrections or additions thereto. He 
 can go into a full defense or he can go into no defense at 
 all before the magistrate." 
 
 § 98. The Code. 
 
 There are two sections of the Code relating to the waiv- 
 ing of the examination, the one* is to the effect that when 
 the defendant waives examination and elects to give bail, 
 the magistrate must admit the defendant to bail if the crime 
 is bailable ; by the other,! when the arrest has been by 
 warrant, unless the defendant requests it, or elects to have 
 the examination, the depositions of the witnesses examined 
 on the taking of the information are to stand in lieu of their 
 re-examination in the presence of the defendant. 
 
 The first is exposed to the criticisms advanced in the last 
 section, the other would be to the objection that the 
 depositions could not be used as evidence on the trial 
 were it not for a saving clause contained elsewhere in the 
 Code designed to preserve their admissibility. % 
 
 * § 190. t g 194. t § 8, subd. 3.
 
 125 
 
 HOLDING TO ANSWER, (Probable Cause). 
 
 CHAPTER I. 
 
 Section 99. The Term, Probable Cause. 
 
 100. Roman Law. 
 
 101. German Conceptions and Subsequent Prog- 
 
 ress. 
 
 102. Present Views. 
 
 103. General Remarks. 
 104 The Code. 
 
 § 99. The Term, Prohahle Cause. 
 
 The term " probable cause " has been used in the head- 
 ing of this section, because it is one that will be generally 
 recognized and perhaps best understood as indicating the 
 matter that will here be considered ; that is, the question of 
 the sufficiency of the evidence to warrant the holding of the 
 accused to answer. 
 
 This designation is selected not without some misgiving, 
 since it may tend to mislead as to the character of the test 
 that is to guide the magistrate in arriving at a decision after 
 the examination is concluded. From what follows it will 
 be learned that the words "probable cause" are insuffi- 
 cient, without explanation, to lead to an accurate under- 
 standing of the duty resting on the committing officer. 
 
 The practices followed heretofore will first be briefly 
 presented and traced to the present theory.
 
 IL'6 
 
 § 100. Roman Laio. 
 
 By the Eoman law we have seen the accused was not 
 arrested till after his trial aand conviction, a consideration 
 shown him which we in our day, enlightened as is our juris- 
 prudence, would not think of extending, and there is not at 
 present any disposition manifesting so high a regard for 
 the liberty of the accused. 
 
 Had a proceeding similar to our examination been known 
 to the Eomans, in all probability some steps would have 
 been provided, after the close of the same, to secure the sus- 
 pected person to answer for the result of the trial. But, 
 the trial being the only hearing, the presumption of in- 
 nocence was in no way disturbed by any preliminary 
 judicial investigation. 
 
 § 101. German Conceptions and Sahseqiient Progress. 
 
 We are shocked in passing to the ancient German theory 
 of trials, wherein the judgment before the hearing of proof 
 condemned the accused who denies, to furnish proof of his 
 innocence. The accused was presumed to be guilty ; and 
 hence that presumption took the place of an examination 
 resulting unfavorably to the defendant. It will be seen 
 that this presumption thereafter continued even after the 
 introduction of the examination, which was only for the 
 benefit of the prosecution. 
 
 Thus it was said less than a century ago that " if a felony 
 was committed and it was found upon examination that the 
 prisoner was not guilty, yet the justice shall not discharge 
 him, but he must either be bailed or committed ; for it is 
 not fit that a man once arrested and charged with felony or 
 suspicion thereof, should be delivered upon any man's 
 discretion without further trial." * 
 
 If, however, said Lord Hale, " there be no cause to com- 
 mit him found by the justice upon examination of the fact, 
 
 * 1 Burns, Justice [1785], Dalfc., c. 164 ; 2 Hale's PI. Cr., 120.
 
 127 
 
 he may discharge him." - By tliis is meant, no ground for 
 suspicion, and BLackstone takes the same position in the 
 following passage : 
 
 " If upon the inquiry into the circumstances of the crime 
 it manifestly appears either that no such crime was com- 
 mitted or that the suspicion entertained w^as wholly ground- 
 less, in such case only it is lawful totally to discharge him, 
 otherwise he must be either committed to prison or give 
 bail.t 
 
 Hawkins explains in the same tenor : 
 
 " A person legally committed for a crime, certainly ap- 
 pearing to have been done by some one or other, can be 
 dischargad by none but the king, till he be acquitted or 
 have an ' Ignoramus ' found, or none to prosecute him on a 
 proclamation made. 
 
 " But it is said that a person committed on a bare sus- 
 picion, without any appeal or indictment, for a supposed 
 crime, where afterwards it manifestly appears that no such 
 crime was committed, may safely be dismissed without 
 any further proceeding." :j: 
 
 As further indicative of the course pursued then, we have 
 another account of the duty of the magistrate : 
 
 " If one be brought before a justice of the peace upon 
 suspicion of felony, although the information against the 
 prisoner shall be by witnesses who are enumerated as not 
 credible, yet it seemeth safest for the justice of the peace to 
 take their information for the king, and to bind them over 
 to give evidence, etc., and to commit the party suspected, 
 and upon the trial to inform the justice of gaol delivery 
 concerning their credit." § 
 
 Bayley, J., referring to the foregoing, says, " I am by no 
 means satisfied with their authority, for I think that a 
 magistrate is clearly bound, in the exercise of a sound dis- 
 cretion, not to commit any one, unless a prima facie case 
 
 * 2 Hale's PL C, vol. 1, p. 583. 
 I 4 Black., p. 296 (Sharswood). 
 X Hawkins' PI. Cr., vol. iii., p. 239. 
 § Dalton's Justice, 408.
 
 128 
 
 is made out against him by witnesses entitled to a reason- 
 able degree of credit.* 
 
 Here a definite requirement is laid down, a prima facie 
 case at least is prescribed, and that degree of proof appears 
 to have been exacted, according to Lord Campbell, by Lord 
 Chief Justice Holt, who acted as a police magistrate in the 
 beo-inning of the eighteenth century, taking depositions 
 against parties accused, and where a j^^'^mu facie case was 
 made out against them committed them for trial.t 
 
 Eeviewing the progress made in the theories concerning 
 the circumstances determining whether the accused shall 
 be put to his trial, we gather that originally the burden of 
 demonstrating innocence rested Avith the accused and not 
 the proof of guilt with the people ; hence no preliminary 
 hearing was had, a charge being all that was requisite, 
 and the trial followed, which was extended as a privilege 
 and a concession to the accused ; after that a suspicion 
 sufficed for committing and then the condition that a prima 
 facie case must exist. The prevailing fear to intrust ma- 
 gistrates with full discretion to discharge offenders is 
 everywhere visible. In this State, as will be hereafter 
 seen, that fear is no longer reflected in its laws. 
 
 The requirement for several centuries prior to this of a 
 prima facie case only, as a condition precedent to convic- 
 tion, we find, was superseded by legislation,! which pro- 
 vided that a strong presumption of guilt must exist before 
 a committal for trial ; but when only one justice was pres- 
 ent at the hearing if there was neither a strong presump- 
 tion of guilt raised nor a dismissal of the charge warranted, 
 the person charged was detained until taken before two 
 justices at the least, who in their discretion might hear 
 evidence on behalf of the prisoner and let to bail should 
 the presumption of guilt be weakened and there still 
 remain ground for further judicial inquiry. 
 
 ••1 B. andC, 50 and 51. 
 
 f Shakesi:)eare's Legal Acquirements, 83. 
 
 X 7 Geo. IV., cap. 64, May 26, 1836.
 
 129 
 
 § 102. Present Vieivs. 
 
 From " strong presumption of guilt " we pass to the 
 expression, by a prominent authority,* that " probable 
 cause " should exist. His views are thus stated : 
 
 " To authorize a commitment, the same proof is not re- 
 quired which would be necessary to convict a person on the 
 trial in chief ; but the committing magistrate will require 
 that probable cause be shown. Probable cause is a case 
 made out by proof, furnishing good reason to believe that 
 the crime alleged has been committed by the person charged. 
 When such cause is shown, it can be done away only by its 
 appearing that no such crime has been committed, or that the 
 suspicion entertained of the prisoner is wholly groundless." 
 
 The time has now been reached when it is thought not 
 imprudent to intrust full authority to discharge to one 
 who has the power to commit, the Revised Statutes being 
 in these words : " If upon the examination of the whole 
 matter it shall appear to the magistrate, either that no 
 offense has been committed, or that there is no probable 
 cause for charging the prisoner therewith, he shall dis- 
 charge such prisoner, "t 
 
 The converse of the conditions under either of which the 
 prisoner shall be discharged is to be found in the section 
 next following the above, and is in these words : 
 
 " If it shall appear that an offense has been committed, 
 and that there is probable cause to believe the prisoner 
 to be guilty thereof, the magistrate shall bind by recogni- 
 zance, etc." 
 
 From the foregoing it will be seen that the probable 
 cause referred to does not relate to the offense as commonly 
 understood, but to the prisoner. In other words, the magis- 
 trate is not simply to come to the conclusion that there is 
 probable cause for believing that an offense has been com- 
 mitted in order to hold an accused person, but, in order to 
 
 * U. S. vs. Burr, Sergeant's Const. Law, 254. 
 f R, S., Part iv., chap, ii., title ii., § 20.
 
 130 
 
 be authorized to do so, it must appear to the magistrate 
 that an offense has in fact, not probably, been committed, 
 and then that settled in the mind of the magistrate, such 
 examination must point to the accused as the probable 
 
 offender. 
 
 It has been held that clear and indubitable proof of guilt 
 is not required in order that the accused may be held ; but 
 if the magistrate, after a full examination of the facts, is 
 satisfied that no crime has been committed, the accused 
 should be at once discharged.* 
 
 § 103. General Remarks. 
 
 To determine on what evidence a prisoner should be 
 committed for trial, or on what testimony he ought to be 
 discharged, are questions of great difficulty and importance, 
 for the magistrate in discharging an accused person, in 
 most cases, terminates all criminal proceedings against 
 him. 
 
 It is true that an indictment will not be quashed on the 
 ground that it was found and presented by the grand jury 
 subsequent to the dismissal of the same charge on exam- 
 ination before a magistrate or pending the same,t but 
 grand juries will ordinarily assume that the matter was 
 properly disposed of by the committing magistrate. Com- 
 plainants failing in one quarter are likely to feel dis- 
 couraged and indisposed to renew their prosecution else- 
 where, and the same and other magistrates will reluctantly 
 rehear the complaint, though the power to do so un- 
 doubtedly exists in proper cases.:}: On the other hand, 
 if the magistrate commit the accused on insufficient evi- 
 dence he subjects the prisoner to great suffering and the 
 people to useless expense in a futile attempt to convict. 
 
 * U. S. vs. Lumsden, 1 Bond, 5. 
 
 f People vs. Heffeman, 5 Park Cr. R. , 393. 
 
 X 2 Kent's Com., p. 12, note b; Wright's Rep., 450 ; 1 Bond, 5.
 
 131 
 
 The following exposition of the duty of the magistrate 
 needs but few modifications or additions : 
 
 "It is to be recollected, however, that this examination is 
 not a judicial inquiry, in which the guilt or innocence of 
 the party accused is to be finally decided upon. It is the 
 duty of the magistrate, in this stage of proceedings, to 
 ascertain, first, whether the crime alleged has been com- 
 mitted, and whether committed in the manner and with the 
 circumstances alleged ; and secondly, if the crime has been 
 so committed, whether there is reasonable ground to believe 
 that the party accused may have committed it, so as to de- 
 mand a further inquiry, and for which the party should be 
 sent to stand his trial upon the charge preferred. And as, 
 on the one hand, the magistrate would act contrar}^ to the 
 principles of reason and justice, and in violation of his 
 duty, if he were to commit the party to prison against the 
 clear conviction of his own understanding and the obvious 
 and inevitable conclusion of common sense ; yet, on the 
 other hand, he is bound not to discharge the prisoner 
 unless he is perfectly satisfied that there is not sufficient 
 ground for judicial inquiry. In the discharge of this part 
 of his duty, the magistrate may encounter cases of consid- 
 erable nicety and difficulty, as where there is conflicting or 
 suspicious testimony, or where the complainant appears 
 pertinaciously to persevere in his accusation from an obsti- 
 nate adherence to a charge once made ; and it seems im- 
 possible to lay down precise and invariable rules for his 
 guidance under such circumstances. He must act on his 
 own responsibility ; but if he acts with purity of intention 
 and according to the best of his judgment in the important 
 trust thus imposed on him, keeping in view that this inquiry 
 is only preliminary and with the object above stated, he 
 can have nothing to apprehend.'' * 
 
 The power lodged in the hands of a magistrate to dis- 
 charge a prisoner accused of having committed an offense 
 against the law, is now complete ; he must, it will be re- 
 
 * Barb. Cr. Treatise, 565.
 
 132 
 
 peatecl, before he can commit, be satisfied tliat an oflfense lias 
 been in fact committed, not that there is merely a j^rhna 
 facie case, or presumption of guilt, or any other degree of 
 proof less than an approach to a conviction in the mind of 
 the justice. And why should this not be so, why should it be 
 in the power of any person to confine in custody another as 
 to whose guilt there should be a reasonable doubt ? The 
 answer has been, that the guilty might not escape. That, 
 it seems, has been the great apprehension, an abiding fear 
 lest the guilty might escape. And this fear has controlled 
 all criminal legislation until the provisions of the Kevised 
 Statutes, which were framed in a spirit far in advance of 
 prior enactments and in accord with the enlightened con- 
 ceptions of the present day. 
 
 The magistrate will, in most cases, find little difficulty in 
 determining whether or not to hold the accused for trial, 
 if he make the examination sufficiently exhaustive. If he 
 be permitted to commit on weak proof, indifference or in- 
 dolence will mark his investigation, which would be absent 
 from a higher responsibility. After the inquiry has been 
 pushed as far as the evidence attainable will permit, and 
 there still present themselves, as against those held by 
 the magistrate, reasonable theories on which the accused 
 might be deemed to be guilty, it will be better and safer to 
 commit."' 
 
 § 104. The Code. 
 
 The following sections of the Code point out when the 
 prisoner is to be discharged and when held : 
 
 " After hearing the proofs and the statement of the defen- 
 dant, if he have made one, if it appear either that a crime 
 has not been committed, or that there is no sufficient cause 
 to believe the defendant guilty thereof, the magistrate must 
 order the defendant to be discharged, by an indorsement on 
 the depositions and statement, signed by him, to the follow- 
 
 * See 1 Colby's Crim. L., pp. 194, 195.
 
 133 
 
 ing effect : ' There being no sufficient cause to believe the 
 within named A. B. guilty of the offense within mentioned, 
 I order him to be discharged.' " " 
 
 " If, however, it appear from the examination that a 
 crime has been committed and that there is sufficient cause 
 to believe the defendant guilty thereof, the magistrate must, 
 in like manner, indorse on the depositions and statement 
 an order, signed by him, to the following effect : 'It appear- 
 ing to me by the within depositions (and statement, if any) 
 that the crime therein mentioned [or any other crime 
 according to the fact, stating generally the nature thereof] 
 has been committed, and that there is sufficient cause to 
 believe the within named A. B. guilty thereof, I order that 
 he be held to answer the same.' " t 
 
 Order for Commitment. 
 
 " If the crime be not bailable, the following words, or 
 words to the same effect, must be added to the indorse- 
 ment : ' and that he be committed to the Sheriff of the 
 County of ' [or in the City and County of New 
 
 York, ' to the keeper of the City Prison of the City of New 
 York'].":}: 
 
 Transmission of Papers. 
 
 " When a magistrate has discharged a defendant, or has 
 held him to answer, as provided in sections 207 and 208 " 
 of the Code (ante, this section), " he must return to the 
 next Court of Oyer and Terminer, or Court of Sessions of 
 the county, or city court having power to inquire into the 
 offense by the intervention of a grand jury, at or before its 
 opening on the first day, the warrant, if any, the deposi- 
 tions, the statement of the defendant, if he have made one, 
 and all undertakings of bail, or for the appearance of 
 witnesses, taken by him." || 
 
 * § 207. t § 208. X § 209. 
 
 § 221 ; see R. S., Part iv., ch. ii., title ii., §§ 26, 37, 32, 33.
 
 . 134 
 
 Generally, the papers of the examination are to be sent 
 to the court where the trial is to be had. 
 
 Defendant to Choose how he shall he Tidied. 
 
 " If the crime with which the defendant is charged be 
 one triable, as hereinbefore provided, by a Court of Special 
 Sessions of the county in which the same was committed, 
 the magistrate, before holding the defendant to answer, 
 must inform him of his right to be tried by a jury after 
 indictment, and must ask him how he will be tried. If 
 the defendant shall require to be tried by a jury after 
 indictment, he can only be held to answer to a court 
 having authority to inquire by the intervention of a grand 
 jury into offenses triable in the county. If he shall not so 
 require, he may be held to answer at the Court of Special 
 Sessions." * 
 
 No Preliminary Examination, if, in Counties other than New 
 York, the Defendant selects a Court of Special Sessions. 
 
 "When the defendant, uj^on being brought before the 
 magistrate, requests a trial by a Court of Special Sessions, 
 the preliminary examination of the case is dispensed 
 with." t 
 
 * Code, § 211. t Code, § 732.
 
 BAIL. 
 
 Chapter I. — What is Bail ? 
 II. — Purpose of. 
 III. — In what Cases. 
 IV. — Amount of Bail. 
 V. — Power to Take Bail ; Apj)lication, etc. 
 VI.— The Sureties. 
 VII.— What Bond Should Contain. 
 VIII. — Form of Discharge on Taking Bail, 
 IX. — Certificate of Bail being Taken. 
 
 X. — Liability of Bail. 
 XL — Duties and Liabilities of the Bailing Power. 
 XII. — New Sureties. 
 XIII. — Acts Ministerial or Judicial. 
 XIV. — Deposit in Lieu of Bail. 
 XV. — Surrender. 
 
 CHAPTER I. 
 
 § 105. What is Bail 
 
 The magistrate having heard the examination and con- 
 cluding not to discharge the accused, may be called on to 
 accept bail in lieu of making out a commitment. Bail is a 
 delivery of a person to his sureties for his appearance at 
 court to answer the charge against him, he being supposed
 
 136 
 
 to continue in their friendly custody, instead of going to 
 prison.* 
 
 A man's bail are not barely his sureties as are mainper- 
 norSjt but are looked upon as his jailers of his own choos- 
 ing, who, if they suspect him, may detain him themselves, 
 and compel him to appear according to the condition of the 
 recognizance.:}: 
 
 * 4 Black Com., c. 22. 
 
 f Mainpernors are merely sureties for the appearance of the person 
 liberated, and are bound to produce him to answer all charges whatsoever. 
 They cannot surrender or imprison their party. (Bouviers' Law Diet., vol. 2, 
 p. 89.) 
 
 X Hawkins' Summary, Book 2, 88.
 
 137 
 
 CHAPTEK II. 
 
 § 106. Purpose of. 
 
 It being now a recognized principle of the criminal law 
 that all are presumed innocent until proven to be guilty, it 
 follows that no punishment should be inflicted prior to 
 conviction ; but since arrests are always made at the outset 
 of criminal proceedings, in so far as the deprivation of 
 liberty thereby ensues, the above principle is violated, ^-nd 
 is justified because of the danger of the non-attendance of 
 the accused at the trial, and with a view to make the pen- 
 alty operative and not at all designed as punishment.* 
 To ameliorate the harshness of the arrest before convic- 
 tion, free nations everywhere guarantee the principle of 
 bailing, t 
 
 A recognizance of bail is not, in a criminal case, designed 
 as a satisfaction of the offense, when it is forfeited and paid, 
 but as a means of compelling the party to submit to the 
 trial and punishment which the law ordains for his offense ;% 
 hence the forfeiture of the bail bond is usually accom- 
 panied with the issuance of a bench warrant for the rearrest 
 of the person bailed and not appearing pursuant to the 
 condition of the bond. 
 
 * People vs. Cole, 6 Par. Cr. R., 695. 
 
 f Lieber's Civil Liberty and Self-government, ed. 1874, p. 67. 
 
 X Ex parte Milbum, 9 Peters, 710.
 
 138 
 
 CHAPTEE III. 
 
 IN WHAT CASES. 
 
 Section 107. Enlargement of the Bailing Power. 
 108. The Code. 
 
 § 107. Enlargement of the Bailing Poiver. 
 
 Up to the latter end of the fifteenth century, it was 
 not determined in England what persons were replevisable 
 (bailable) and what not ; but only those taken for death or 
 by command of the king or of the justices or for the Forest, 
 when by Westminster 1, c. 15, those offenses which are bail- 
 able, and those not were designated,* and thereafter only 
 a limited class of persons wei'e, it appears from the follow- 
 ing enactment, entitled to bail, which privilege was extended 
 thereby to certain prisoners not indicted. 
 
 The provision is in these words : " For as much as divers 
 persons have been daily arrested and imprisoned for sus- 
 pection of felony, sometimes of malice and sometimes of 
 slight suspection, and so kept in prison without bail or 
 mainprise to their great vexation and trouble. Be it 
 ordained and established, etc., that every justice of every 
 shire, city or town, shall have authority and power by his 
 or their discretion to let such prisoners and persons so 
 arrested to bail or mainprise, in like form as though the 
 same prisoners or persons were indicted thereof of record 
 before the same justices in their sessions." t 
 
 As the rights of prisoners were from time to time 
 enlarged in other resj)ects, the j)i'iiiciple of bailing was 
 extended until it rests on this enlightened principle — if the 
 attendance of the accused can be effected as certainly by bail 
 as by imprisonment, he should in almost any case be 
 
 * Hawks. PI. Cr., Book 2, 196 ; Hawkins' Summary, title BaU, Book 2, 95. 
 fl Richard III., cap. iii. (1483).
 
 139 
 
 bailed ; * or, wlieu, it is said, the loss of the bailed sum may 
 be considered as a more serious evil than the possible 
 
 punishment.t 
 
 " In most of the inferior offenses," says Blackstone, " bail 
 will answer the same intention as commitment, and, there- 
 fore, it ought to be taken," | but if the guilt of the prisoner 
 is beyond dispute, bail ought not to be taken. In criminal 
 cases bail is founded on the doubt which may exist as to 
 the prisoner's guilt and not on the grace or favor of the 
 court. At each stage of the proceeding, the grounds upon 
 which the accused can be let to bail diminish in proportion 
 as the evidences of his guilt increase. § 
 
 Even in cases of the highest crimes, unless the proof of 
 guilt is evident or the presumption great, the accused is 
 allowed to give bail, and this concession is guaranteed by 
 the constitution or statutes of most of the States. II 
 
 " But in offenses of a capital nature, no bail,'' it is said, 
 " can be security equivalent to the actual custody of the 
 person. There is nothing that a man may not be induced 
 to forfeit to save his life, and it is no satisfaction or indem- 
 nity to the public to seize the effects of those who have 
 bailed a murderer, if the murderer himself be suffered to 
 escape with impunity." IF Under special circumstances, 
 however, the power to bail exists even in capital cases.** 
 
 § 108. The Code. 
 
 The Code tt is particularly explicit on this question : 
 " The defendant cannot be admitted to bail, where he is 
 charged, 
 
 * People vs. Cole, 6 Par. Cr. R., 695. 
 
 f Lieber's Civil Liberty and Self-government, p. 67, ed. 1874. 
 X 4 Blackstone Com. , c. 22. 
 § People vs. Lohman, 2 Barb., 450. 
 
 II Arch. Grim. Practice and Pleadings, vol. 1, 165 and 166. 
 T[ 4 Blackstone Com., c, 22. 
 **Arch. Cr. Pr. and PI., vol. 1, 1G7, 169. 
 
 ff The Notes to Revisers' Report of N. Y. Code of Cr. Proc. , pp. 284 to 
 291, 1850, will be read with profit.
 
 140 
 
 1. With a crime punishable with death ; or, 
 
 2. With the infliction of a probably fatal injury upon 
 another, and under such circumstances as that, if death 
 ensue, the crime would be murder." * 
 
 " If the charge be for any other crime, he may be admitted 
 to bail, before conviction, as follows : 
 ■ 1. As a matter of right, in cases of misdemeanor ; 
 
 2. As a matter of discretion, in all other cases." t 
 
 * 8 552. + § 553.
 
 141 
 
 CHAPTER IV. 
 
 AMOUNT OF BAIL. 
 
 Section 109. Elements to be Considered. 
 110. Not to be Excessive. 
 
 § 109. Elements to he Considered. 
 
 In determining tlie amount of bail, its sufficiency to 
 secure the appearance of the prisoner at the trial is to be 
 the only consideration ; therefore it must depend on the 
 seriousness of the offense, the ability and quality of the 
 prisoner,* and, it may be added, the extent and character of 
 the proofs. 
 
 § 110. N~ot to he Excessive. 
 
 As far back as the year 1689, it was enacted that " no 
 excessive bail" shall be required.f 
 
 The Constitution of the United States provides that 
 excessive bail shall not be required. | 
 
 Substantially the same provision forms a part of the 
 Constitution of this State, § and of the States generally. 
 
 But what is excessive bail must be left to the judgment 
 of the officer or court empowered to decide upon it, depend- 
 ing, of course, on the circumstances of the case ; for what 
 might be a low bail in one case might be excessive in 
 another, and vice versa. || 
 
 * Hawkins' Summary, Book 2, p. 89 ; Ex parte Banks, 28 Ala. Rep., 89 ; 
 Swan's Justice, p. 483; Lieber's Civil Liberty and Self-government, ed. 
 1874, p. 67. 
 
 f 1 William and Mary, Sess. ii., c. 2. 
 
 X U. S. Const., art. viii. , Amendments. 
 
 § N. Y. Const., art. i., § 5 ; see also, 1 Rev. Stat., Part i., chap, iv., § 17. 
 
 i Davis, J., 83.
 
 142 
 
 CHAPTEE V. 
 
 POWER TO TAKE BAIL ; APPLICATION, ETC. 
 
 Section 111. General Principles. 
 
 112. Ancient Justices of tlie Peace. 
 
 113. Offenses Against tlie United States. 
 
 114. The Several States. 
 
 115. The Code — General Powers Conferred. 
 
 116. By Whom, when Committing Magistrate 
 
 has no Power. 
 
 117. How Long Committing Magistrate Ketains 
 
 Power. 
 
 118. Notice of Ai3i3lication for Bail to the District 
 
 Attorney, in Cities. 
 111). Notice may be Kequired Elsewhere by 
 Court or Magistrate. 
 
 120. Order or Certificate Granting or Denying 
 
 Bail. - 
 
 121. New Application for Bail on Denial of. 
 
 122. Penalties for Illegal Applications. 
 
 123. Certain Powers not Limited. 
 
 124. Whose Decision Final. 
 
 § 111. General Principles. 
 
 The power to take bail is incident to every common law 
 court of record,* and is incident to the power to hear and 
 determine.! 
 
 Bail may be taken by an officer who has general jurisdic- 
 tion to take bail, although not the officer before whom the 
 application to take bail is pending.:]: 
 
 * Young vs. Shaw, 1 Chipman, 224. 
 t People vs. Van Home, 8 Barb., 158. 
 X People vs. Legget, 5 Barb., 360.
 
 143 
 
 § 112. Ancient Justices of the Peace. 
 
 From the time tlie right to bail was recognized, the 
 ancient officer of "Justice of the Peace" had jurisdiction 
 to take the recognizance. 
 
 This power was at first lodged with one justice, and 
 becoming the subject of abuse, it was deemed wise " to take 
 the power from a single justice " and confer it on " all of 
 the justices of the peace," or two at the least, whereof one 
 to be of the quorum, to let " such prisoners or persons 
 mainpernable by the law, that have been imprisoned within 
 their several counties, city or town, to bail or mainprise, 
 until their next general sessions, or unto the next gaol de- 
 livery of the same gaols in every shire, city or town, as 
 well within franchises or without where any gaols have been 
 or hereafter shall be, and to certify the same at such next 
 general sessions or gaol delivery."* 
 
 § 113. Offenses against the United States. 
 
 Authority is given by acts of Congress to take bail for 
 any crime except where the punishment is death, to any 
 judge of the United States, and to any chancellor, judge of 
 the Supreme or Superior Courts, or first judge of any Court 
 of Common Pleas, mayor of a city, in any State, and any 
 justice of the peace or other magistrate of an}^ State where 
 the offender may be found ; the recognizance taken by any 
 of the persons authorized to be returned to the courts of 
 the United States having cognizance of the offense; and on 
 refusal to enter into such recognizance, the magistrate may 
 imprison the person so refusing.'!' 
 
 A person committed by a United States judge can be 
 bailed by a State judge, except in a capital case, if there be 
 no United States judge in the district. 
 
 *3 H. vii., c. 3. 
 
 t Act of Congress, Sept. 24, 1879, § 33, and Act of Congress, March 23, 
 1793, § 4.
 
 144 
 
 A person committed by a State judge for an offense 
 against the United States, the same or another State judge 
 may bail.* 
 
 §114. The Several States. 
 
 In general, in the several States, the magistrates before 
 whom the examination is had may take bail, in all cases, 
 except those punishable capitally .t 
 
 § 115. The Code — General Poioers Conferred. 
 
 " When the defendant has been held to answer, as pro- 
 vided in section 208," (ante, § 104) " the admission to 
 bail may be by the magistrate by whom he is so held, as 
 
 follows : 
 
 1. By any of the magistrates mentioned in section 147 " 
 of the Code (ante, § 22) " when the crime charged is a mis- 
 demeanor, or a felony punishable with imprisonment, not 
 exceeding five years ; 
 
 2. By a judge of the Supreme Court, or any judge author- 
 ized to preside in a court having jurisdiction to try indict- 
 ments, m all cases where bail may be taken, before con- 
 viction, as provided in section 554" (of the Code).^ 
 
 Section 554 is as follows : 
 
 "Before conviction, a defendant may be admitted to 
 bail, 
 
 1. For his appearance before the magistrate, on the 
 examination of the charge, before being held to answer ; 
 
 2. To appear at the court to which the magistrate is 
 required, by section 221 " of the Code (ante, § 104) " to 
 return the depositions and statement, upon the defendant 
 being held to answer, after examination ; 
 
 3. After indictment, either upon the bench warrant is- 
 sued for his arrest, or upon an order of the court committing 
 him, or enlarging the amount of bail, or upon his being 
 
 * 5 Bin. 515; McKin. Am. Mag., 255, 256. 
 
 t 1 Arch. Cr. Pr. and PI., 169. 
 
 1:§557.
 
 145 
 
 surrendered by his bail, to answer the indictment in the 
 court in which it is found, or to which it may be sent or 
 removed for trial." 
 
 § 116. By Whom, ivhen Committing Magistrate has no 
 
 Power. 
 
 " When, by reason of the degree of the crime, the com- 
 mitting magistrate has not authority to admit to bail, the 
 defendant may be admitted to bail by one of the officers 
 having authority to admit to bail in the case, as provided 
 in the second subdivision " of section 557 of the Code (ante, 
 § 115), " or by the court to which the depositions and state- 
 ments are returned by the committing magistrate, as provi- 
 ded in section 221 " of the Code (ante, § 104), " if the case 
 be triable therein, or if not, by the court to which, after 
 indictment, it may be sent or removed for trial."* 
 
 § 117. Hoiv long Committing Magistrate retains Power to 
 
 Bail. 
 
 " The defendant may be admitted to bail by a magistrate, 
 as provided in " sections 557 and 558 of the Code (ante, §§ 
 115 and 116), " upon being held to answer, or at any time 
 before the return of the depositions and statement, to the 
 court. After that time he can be admitted to bail only by 
 a judge presiding in the court in which the crime is triable, 
 if it be sitting, or if not, by one of the magistrates men- 
 tioned in the second subdivision of section 557" of the 
 Code (ante, § 115).t 
 
 § 118. Notice of Application for Bail to the Distinct 
 
 Attorney in Cities. 
 
 "In the several cities X of this State, if the crime charged 
 be a felony, a previous notice in writing of at least two 
 
 * § 558. t § 559. 
 
 I See note to Revisers' Eeport of N. Y. Code of Crira. Procedure, p. 296 
 (1850). 
 
 10
 
 146 
 
 days, of the time and place of giving the bail, must be 
 served upon the district attorney of the county, stating : 
 
 1. The names, places of residence and occupations of 
 the proposed surety or sureties ; 
 
 2. A general description of the real or personal property 
 of the surety or sureties, in respect to which they propose 
 to justify as to their sufficiency, with the incumbrances 
 thereon, by mortgage, judgment or otherwise, if any. 
 
 The district attorney may waive the giving of the 
 notice herein provided for, or a shorter time than two days 
 may be directed by the court or magistrate requiring the 
 notice. 
 
 § 119. Notice may be Required Etsewhere by Court or 
 
 Magistrate. 
 
 "Except as " immediately above prescribed," the bail may, 
 in the exercise of a just discretion, be taken, and may jus- 
 tify, without notice to the district attorney, or reasonable 
 notice of the intention to give bail may be required by the 
 court or magistrate, to be given to the district attorney." 
 The notice shall be as given in the last section.t 
 
 § 120. Order or Certificate Granting or Denying Bail. 
 
 "If the application for bail be to the court, an order must 
 be made, granting or denying it, and if it be granted, 
 stating the sum in which bail may be taken. | 
 
 " If the apj)lication be to a magistrate, he must certify, in 
 writing, his decision granting or denying the same ; and if 
 he grant the application, must state in the certificate the 
 sum in which bail may be taken ; which certificate he must 
 cause to be forthwith filed with the clerk of the court to 
 which the depositions and statements are required to be 
 sent. II 
 
 * ' If the defendant be admitted to bail by a magistrate, 
 the bail must be taken by the magistrate granting the 
 
 *§571. t§570. 1:§561. i § 562.
 
 147 
 
 order, unless the order shall specify that the same may be 
 taken by some other designated magistrate."* 
 
 § 121. New Application for Bail on Denial of. 
 
 " If an application for admission to bail, made to a magis- 
 trate, be denied, not more than two subsequent ai^plications 
 therefor can be made to other magistrates, except that an 
 a23plication can be made to any magistrate mentioned in 
 subdivision 2 of section 557 " of the Code (ante, § 115), " if 
 no application has been previously made to a magistrate 
 mentioned therein." f 
 
 § 122. Penalties for Illegal Application. 
 
 "A violation" of which prohibition "is punishable as a 
 misdemeanor, and the admission of the defendant to bail 
 contrary thereto, may be revoked by the magistrate who 
 made it, or vacated by the court to which the depositions 
 and statement are or must be sent, as provided in section 
 221 " of the Code (ante, § 104), " or to which, after indict- 
 ment, the action must be sent for trial." J 
 
 § 123. Certain Fower not Limited. 
 
 These provisions shall not be construed to limit the 
 power of any judge j^residing in the court in which the 
 offense is triable to let the defendant to bail. || 
 
 § 124. Whose Decision Final. 
 
 " The decision of the judge presiding in the court in which 
 the crime is triable, granting or denying bail, is final, 
 except as provided in section 563 " of the Code (ante, § 121). IF 
 
 *§567. t§563. t§564. 
 
 II § 565. T[ § o6G.
 
 148 
 
 CHAPTEE VI. 
 
 THE SUEETIES. 
 
 Section 125. Qualifications. 
 
 126. Justification. 
 
 127. District Attorney or Magistrate may Examine 
 
 Sureties beyond tlieir Justification. 
 
 128. Other Testimony may be Eeceived. 
 
 129. Order on Close of Examination into Bail. 
 
 § 125. Qualifications. 
 
 " The qualifications of bail are as follows : 
 
 1. He must be a resident, and a householder or freeholder 
 within the State, and, unless the magistrate otherwise direct, 
 within the county ; 
 
 2. He must be worth the amount specified in the under- 
 taking, exclusive of property exempt from execution ; but 
 the magistrate, on taking bail, may require two sureties, or 
 may allow two or more to justify severally in amounts less 
 than that expressed in the undertaking, if the whole justifi- 
 cation be equivalent to that of one sufficient surety." * 
 
 § 126. Justification. 
 
 " The surety or sureties must in all cases justify by affida- 
 vit, taken before the magistrate. The affidavit must state 
 that each of the sureties possesses the qualifications pro- 
 vided " in the last section.f 
 
 * § 569. 
 
 f § 572 ; 1 Chit. Cr. L. , p. 99. The sureties should be known or made 
 known to the officer taking the bond, so that its execution may, should it 
 become necessary, be proved by him and to avoid fraudulent personation 
 of the bondsmen.
 
 149 
 
 § 127. District Attorney or llagistrate may Examine them 
 
 beyond their Justification. 
 
 " Tlie district attorney, or the magistrate, may further ex- 
 amine the sureties upon oath, concerning their sufficiency, 
 in su^h manner as the magistrate may deem proper. The 
 questions put to the sureties, and their answers, must be 
 reduced to writing, and must be subscribed by them." * 
 
 § 128. Other Testimony may he Received. 
 
 " The magistrate may also receive other testimony, either 
 for or against the sufficiency of the bail, and may from time 
 to time adjourn the taking of bail, to afford an opportunity 
 of proving or disproving its sufficiency." t 
 
 § 129. Order mi Close of Examination into Bail. 
 
 " When the examination is closed, the magistrate must 
 make an order, either allowing or disallowing the bail, and 
 must forthwith cause the same, with the affidavits of justi- 
 fication, and the undertaking of bail, to be filed with the 
 clerk of the court to which the depositions and statement 
 must be sent, as prescribed in section 221 " of the Code 
 (ante, § 104). t 
 
 * § 57.3. 
 
 f § 574 ; 2 Hawkins' PI. Crown, p. 141.
 
 150 
 
 CHAPTER VII. 
 
 WHAT BOND SHOULD CONTAIN. 
 
 Section 130. Necessary Elements. 
 131. Form of Bond. 
 
 § 130. Necessary Elements. 
 
 The recognizance sliould, on its face, show that the 
 magistrate had jurisdiction and authority to demand and 
 receive it ;* it should likewise contain the date of taking it, 
 the name of the accused and his sureties, the kind of of- 
 fense for which the party is to answer,t that there is prob- 
 able cause for believing the prisoner guilty of it,| the pen- 
 alty and the condition. 
 
 As to the effect of certain omissions, redundancies, and 
 errors therein there have been numerous decisions. § 
 
 It was held that recognizances which merely declared 
 that the defendant was charged with a criminal offense 
 without reciting that the magistrate adjudged that there 
 was probable cause for believing him guilty, was void, || 
 but overruled,"!! on the ground that the same rule as to a 
 mittimus (commitment) or othei: proceeding of that nature, 
 
 * state vs. Smith, 2 Greenl., 62 ; Nicholson vs. State. 2 Kelley, 363 ; Good- 
 ■vdn vs. Governor, 1 Stew, and Port., 465 ; Com. vs. Downey, 9 Mass., 520, 
 S. P.; Com. vs. Daggett, 16 Mass., 447. 
 
 •{•Goodwin vs. Governor, 1 Stew, and Port., 465; Simpson vs. Common- 
 wealth, 1 Dana, 523, 165 ; People vs. Bundle, 6 Hill, 506. 
 
 X People vs. Koeber. 7 Hill, 39. 
 
 § Arch. Crim. Pr. and PI., 1 vol., p. 175, et seq. 
 
 I People vs. Koeber, 7 Hill, 43, and People vs. Young, 7 Id. , 45. 
 
 If People vs. Kane, 4 Denio, 530; People vs. Champlain, 2 N. Y., pp. 85 
 and 86.
 
 151 
 
 to wliich the assent of the party could not be presumed or 
 supposed, was erroneously applied to a recognizance. The 
 presumption is in favor of the regularity of the proceeding 
 "which led to the recognizance. 
 
 When a person is bailed instead of being delivered into 
 the hands of the sheriff, or keeper of the jail, the prisoner 
 is kept by his bail and must be, for the same time that the 
 keeper of the jail under the commitment could keep him, 
 until the sitting of the next court having cognizance of the 
 offense. Then, if the grand jury fail to indict, the prisoner 
 is entitled to his discharge. This is the practice at com- 
 mon law. Our statute * makes it the dutv of the Court of 
 Oyer and Terminer and Sessions, within twenty-four hours 
 after the discharge of the grand jury, to cause every person 
 confined in the county prison on a criminal charge, who 
 shall not have been indicted, to be discharged without 
 bail, unless satisfactory cause is shown for detaining him 
 in custody or for requiring him to give bail. 
 
 The provision of the statute t which authorizes the 
 magistrate taking the examination to require the prose- 
 cutor and all the material witnesses against the prisoner to 
 enter into a recognizance to appear and testify at the next 
 court having cognizance of the offense, and in which the 
 prisoner may be indicted, likewise determines the question 
 as to the time when the bail is to produce the principal. If 
 the officer taking the bail can require the prisoner to give 
 bail for his apj)earance at the next court but one, why may 
 he not as well put it at the third or fourth court, or even 
 at a longer period, and great opjDression might result. J 
 
 Where a justice of the peace has power to act only in 
 the absence of a police justice residing in the same town, 
 the legal presumption will be, in the absence of proof, 
 that he did not transcend his duties.§ 
 
 *2R. S., 758, §26. 
 
 t 2 R. S., part IV., ch. II., title II., §21. 
 
 X People m. Mack, 1 Park Cr. Rep., p. o67. 
 
 §Ib.
 
 152 
 
 § 131. Form of Bond. 
 
 According to the Code, " bail is put in, hj a written 
 undertaking, executed by sufficient surety (with or without 
 the defendants, in the discretion of the magistrate), and 
 acknowledged before the magistrate in substantially the 
 following form : . . 
 
 ' An order having been made on the day of 18 , 
 
 by A. B., a justice of the peace of the town of 
 (or as the case may be), that C. D. be held to answer, upon 
 a charge of (stating briefly the nature of the crime), upon 
 which he has been duly admitted to bail, in the sum of 
 dollars ; 
 
 * We, C. D., defendant (if the defendant join in the under- 
 taking), of (stating his place of residence and occupation), 
 and G. H.,of (stating his place of residence and occupation), 
 surety (or sureties as the case may be), hereby undertake, 
 that the above-named C. D. shall appear and answer the 
 charge above mentioned, in whatever court it may be prose- 
 cuted ; and shall at all times render himself amenable to the 
 orders and process of the court ; and, if convicted, shall 
 appear for judgment, and render himself in execution 
 thereof ; or if he fail to perform either of these conditions, 
 that we will pay to the People of the State of New York 
 the sum of dollars ' (inserting the sum in 
 
 which the defendant is admitted to bail)."* 
 
 Form of Bond to a Court of Special Sessions in Counties 
 
 other than New York. 
 
 " The bail must be taken by the magistrate by a written 
 undertaking, executed by the defendant, with one or more 
 sufficient sureties, approved by the magistrate, in a sum 
 not exceeding two hundred dollars. t 
 
 " The undertaking must be in substantially the following 
 form : 
 
 * § 568. t Code, § 737.
 
 153 
 
 'A. B., having been duly charged before C. D., a justice 
 of the peace in the town [or city] of [as the 
 
 case may be], with the offense of [designating the offense 
 generally]. 
 
 ' We undertake that he shall appear thereon, from time 
 to time, until judgment at a court of Special Sessions, in 
 the town [or city] of [as the case may be], 
 
 held by the justice above named, and such other justices as 
 may be associated with him to constitute such court, or 
 that we will pay to the county of [naming the 
 
 county in which the court is held], the sum of 
 dollars' [inserting the sum fixed by the magistrate]. 
 
 ' Dated at the town [or city] of ,' [as the case 
 
 may be]. " * 
 
 CHAPTEE VIII. 
 § 132. Form of Discharge on taking Bail. 
 
 The Code likewise provides that, " upon the allowance 
 of the bail and the execution of the undertaking, the court 
 or magistrate must make an order, signed by him, with 
 his name of office, for the discharge of the defendant, to 
 the following effect : 
 
 ' To the sheriff of the county of ' [or, in the city and 
 
 county of New York, ' to the keeper of the city prison of 
 l^ew York ' ] ' A. B., who is detained by you on a commit- 
 ment to answer a charge for the crime of, [designating it 
 generally], having given sufficient bail to answer the same, 
 you are commanded forthwith to discharge him fi'om your 
 custody.' " t 
 
 * Code, § 738. Forfeiture of undertaking, action thereon, and remission of 
 forfeiture, see Code, §§ 739 and 740. 
 t § 576.
 
 154 
 
 CHAPTEE IX. 
 
 § 133. Certificate of Bail heiyig Taken. 
 
 "If the crime be bailable, and bail be taken by the 
 magistrate, the following words, or words to the same 
 effect, must be added to the indorsement mentioned 
 in section 208 " of the Code (ante, § 104), " and I have 
 admitted him to bail to answer, by the undertaking hereto 
 annexed." * 
 
 CHAPTEK X. 
 
 § 134. Liahility of Bail. 
 
 Bail, at one time, was liable for all legal penalties in- 
 curred by a defaulter, and occasionally, indeed, would seem 
 to be made to share the fate of his principal, when the 
 latter appeared and was defeated. 
 
 Now he is liable only for the penalty expressed in the 
 bond. 
 
 * § 310 ; see section 104 ante, as to transmission of bail bond ; also R. S., 
 part iv , ch. ii., title ii., §§ 26, 27, 34 and 35.
 
 155 
 
 CHAPTEE XI. 
 
 DUTIES AND LIABILITIES OF THE BAILING OFFICER. 
 
 Section 135. Must Examination be first had before Bailing 
 
 Prisoner ? 
 
 136. Prisoner must tender Bail. 
 
 137. Sureties Securing Themselves. 
 
 138. Party not ready with Bail. 
 
 139. Unlawful Bailing. 
 
 140. Acceptance of Bail terminates Jurisdiction. 
 
 141. Proper Bail must be Accepted. 
 
 § 135. Must Examination he first had before Bailing Prisoner ? 
 
 The examination must first be taken ere the accused can 
 be let to bail. 
 
 By the 1 and 2 of Philip and Mary, cap. xiii., it was 
 directed, as we have seen, that owing to the abuse of the bail- 
 ing power alleged to exist at that time, the examination of the 
 complainant and his witnesses should be taken in writing, 
 prior to bailing the prisoner, in order that the character of 
 the offense charged by the accuser might not be falsely 
 stated. 
 
 By the wording of the Code * the examination can be 
 waived and bail offered. Should the arrest be by warrant, 
 the taking of bail immediately, owing to the existence of a 
 written complaint, can readily follow, but in the event 
 of the arrest being without warrant, there will be difficulties 
 in the way of dispensing with the examination and taking 
 the recognizance of the defendant at once,t but the bond 
 without an examination having been had is undoubtedly 
 good. 
 
 * § 190. t See ante, §§ 97, 98.
 
 156 
 
 § 136. Prisoner must tender Bail. 
 
 If the person be bailable yet tlie justice is not bound to 
 demand bail, but the prisoner is bound to tender it, 
 otherwise the justice may commit him.* 
 
 § 137. Sureties Securing Themselves. 
 
 The fact that the bail hnve received transfers of property 
 from friends of the accused, in order to enable them to 
 qualify, is no objection to them.t 
 
 § 138. Party not ready with Bail. 
 
 If the party is not ready with bail at the time he is 
 apprehended and examined, and the offense is bailable, he 
 may at any time be released from imprisonment on finding 
 sureties. J 
 
 § 139. Unlawful Bailing. 
 
 The officer taking bail must, at his peril, inform himself of 
 the cause of the commitment of the accused.§ 
 ' And the bailing of a person not bailable by law, is 
 punishable either at common law, as a negligent escape, or 
 as an offense against the statute. II 
 
 If the jjarty be bailed by insufficient sureties, but appears, 
 it seems that the person who bailed him is excused.l 
 
 § 140. Acceptance of Bail terminates Jurisdiction. 
 
 The acceptance by a committing magistrate of bail, to 
 answer in any case pending before him, terminates his 
 jurisdiction of the case, and such jurisdiction cannot be 
 reinstated.*" 
 
 * 2 Hale's PI. Cr., 123 ; Barb Cr. L., p. 576. 
 
 t People m. Ingersoll, 14 Abb. Pr., N. S., 23. 
 
 X 1 Burr, 460 ; 3 Hawk., c. 16, § 1, n. i; 1 Nun. and Walsh, 383. 
 
 § Hawk. Summary, p. 90. 
 
 I lb., p. 89 : People vs. Coon, 15 Wend., p. 277. 
 
 lib. 
 
 ** People ex rel. Phelps vs. Donohue, 14 Hun., p. 135.
 
 157 
 
 § 141. Proper Bail must he Accepted. 
 
 The power to let to bail is accompanied by a duty to 
 accept proper bail, and, therefore, to refuse or delay is an 
 offense at common law against the liberty of the subject, for 
 which the magistrate is liable in damages to the party 
 injured.* 
 
 CHAPTEK XII. 
 
 § 142. Neiv Sureties. 
 
 If the person who has power to take bail be so far imposed 
 upon as to suffer a prisoner to be bailed by insufficient 
 persons, he or any other person who has power to bail 
 him, may require the party to find better sureties, and 
 may commit him on his refusal, for it is said " insufficient 
 sureties are no sureties."t 
 
 CHAPTEK XIII. 
 
 § 143. Acts Ministerial or Judicial. 
 
 The duty to bail has been supposed to be ministerial, 
 and the justice or other officer therefore obliged to allow 
 bail under peril of prosecution, but in an action against a 
 magistrate brought on this theory for refusing to admit to 
 bail a prisoner charged with misdemeanor, it was held that 
 there was no liability attaching to the officer without proof 
 of malice, on the ground that his duty was not simply and 
 purely ministerial, but judicial. | 
 
 * 2 Stark Ev., 5th American ed., 428, n. 1 ; 2 Hawk. p. 90; Davis, J., 83. 
 f Hawkins' Summary, Book 2, p. 89; Barb. Cr. L., p. 579. 
 i Linford vs. Fitzroy, New Mag. Cases, vol. 3, p. 144 ; Keg. vs. Badger, 4 
 Q. B., 468.
 
 158 
 
 However this may be respecting misdemeanor, the ques- 
 tion whether bail shall be allowed or not is in all cases of 
 felony purely judicial, not only before the appellate court 
 or officer, but before the committing magistrate or court. 
 The statutes in giving power to bail create no ministerial 
 duty and impose no obligation beyond what rests upon any 
 judge in the exercise of his powers as such. Thus the 
 direction to the court or officer to proceed and let the 
 party to bail if the case be bailable, although mandatory 
 in form, can only mean when it is properly bailable.* 
 
 It has been said that an action cannot be maintained for 
 refusing to admit to bail, except on proof of malice.f 
 
 CHAPTEE XIV. 
 
 § 144. Deposit in Lieu of Bail. 
 
 The Code on this subject contains the following sections : 
 
 " The defendant, at anytime after an order admitting him 
 to bail, instead of giving bail, may deposit with the county 
 treasiirer, of the countv in which he is held to answer, the 
 sum mentioned in the order ; and upon delivering to the 
 officer, in whose custody he is, a certificate of the deposit, 
 he must be discharged from custody.''^ 
 
 " If the defendant have given bail, he may, at any time 
 before the forfeiture of the undertaking, in like manner 
 deposit the sum mentioned in the undertaking ; and upon 
 the deposit being made the bail is exonerated."!! 
 
 " If money be deposited, as provided in the last section, 
 bail may be given, in the same manner as if it had been 
 
 * People v. Cunningham, 3 Park Cr. R., p. 541 ; 3 Hill (appendix), p. 673 ; 
 People V. Donohue, 14 Hun., p. 133. 
 t Linford e. Fitzroy, 18 L. J., M. C, 108; 13 L. T., 158; 13 Q. B., 240. 
 
 i § 587.
 
 159 
 
 originally given upon the order for admission to bail, at 
 any time before the forfeiture of the deposit. The court 
 or magistrate before whom the bail is taken must there- 
 upon direct, in the order of allowance, that the money 
 deposited be refunded by the county treasurer to the 
 defendant; and it must be refunded accordingly."* 
 
 " When money has been deposited, if it remain on deposit 
 and unforfeited at the time of a judgment for the payment 
 of a fine, the county treasurer must, under direction of the 
 court, apply the money in satisfaction thereof, and after 
 satisfying the fine, must refund the surplus, if any, to the 
 defendant."t 
 
 When a statute provides that there shall be a recogni- 
 zance, money cannot be received by the court in lieu of or 
 as a substitute for bail,:}: 
 
 CHAPTEE XV. 
 
 § 145. Surrender. 
 
 A man's bail, if they suspect him, may bring him before 
 a justice of the peace, by whom he may be committed, 
 unless he find new sureties,§ when he may be bailed again.|| 
 
 The provisions of the Code are in these words : 
 
 " At any time before the forfeiture of the undertaking, 
 any surety may surrender the defendant in his exonera- 
 tion, or the defendant may surrender himself, to the ofiicer 
 to whose custody he was committed at the time of giving 
 bail, in the following manner : 
 
 1. A certified copy of the undertaking of the bail must 
 be delivered to the ofiicer, who must detain the defendant 
 
 * § 588. 
 
 t § 589. 
 
 X Butler vs. Foster, 14 Ala., 32.3. 
 
 § Hawk. Summary, 88. 
 
 II Kellogg vs. State, 43 Miss., 57; Hale, PL Cr., Book 2, p. 186.
 
 160 
 
 in his custody thereon, as upon a commitment, and by a 
 certificate in writing, acknowledge the surrender. 
 
 2. Upon the undertaking and the certificate of the ojfficer, 
 the court in which the indictment or the appeal, as the 
 case may be, is pending, may, upon a notice of five days to 
 the district attorney of the county, with a copy of the 
 undertaking and certificate, order that the bail be exoner- 
 ated ; and on filing the order and the papers used on the 
 application, the bail is exonerated accordingly."* 
 
 "For the purpose of surrendering the defendant, any 
 surety at any time before he is finally charged, and at any 
 place within the State, may himself arrest him ; or by a 
 written authority, indorsed on a certified copy of the under- 
 taking, may empower any person of suitable age and discre- 
 tion to do so."t 
 
 "If money have been deposited instead of bail and the 
 defendant at any time before the forfeiture thereof surren- 
 der himself to the officer to whom the commitment was 
 directed, in the manner provided in section 590 " of the 
 Code (ante, this section), " the court must order a return of 
 the deposit to the defendant, upon producing the certifi- 
 cate of the ofiicer showing the surrender, and upon a 
 notice of five days to the district attorney, with a copy of 
 the certificate.":}: 
 
 * § 590. t § 591- t § 592.
 
 161 
 
 COMMITMENT. 
 
 Chapter I. — Temporary Commitment. 
 " II. — Final Commitment. 
 
 CHAPTEE I. 
 
 TEMPOEAEY COMMITMENT. 
 
 Section 146. Custody of Prisoner in Officer, until Com- 
 mitted. 
 
 147. Commitment for further Examination. 
 
 148. Until Final Commitment is made out. 
 
 § 146. Custody of Prisoner in Officer until Committed. 
 
 Wlien the prisoner is brought before the justice, he is 
 still considered to be in the custody of the officer until he 
 has been either discharged, bailed, or committed to 
 prison.^ 
 
 § 147. Commitment for further Examination. 
 
 A commitment for further examination must not be made 
 use of as a commitment for trial, the former being limited 
 to a reasonable time. A commitment for further examina- 
 tion is not a proceeding against the party, but a proceeding 
 for his benefit, with a view to protect him against a commit- 
 
 * 2 Hale, PI. Cr. , 120. 
 11
 
 162 
 
 meut for trial, if it can be found that tliere is not sufficient 
 ground for the latter.* 
 
 By the Code such commitment "is by an indorsement 
 signed by the magistrate, on the warrant of arrest, to the 
 following effect, as heretofore given : ' The within named 
 A. B. having been brought before me under this warrant, 
 is committed for examination to the sheriif of the county 
 of ,' or in the city and county of New York, 
 
 ' to the keeper of the city j)rison of the city of New York.' " f 
 
 § 148. Until Final Commitment is made out. 
 
 After the magistrate has determined on committing the 
 party, he may verbally authorize the constable to detain 
 him until he can make out his mittimus,;!: or the party may 
 be committed to custody while the warrant of commitment 
 is being made out, but no longer, for the reason given, 
 " that the party is thereby deprived of the advantage of a 
 habeas corpus, since the jailer could make no return to 
 such a writ." § 
 
 *3Dow'sRep., 184. 
 
 tl93. 
 
 X 7 East., 533 ; 3 Smith, K. B., 513 ; 2 Hale, 122. 
 
 § Hutchinsoa vs. Lowndes, 1 Xev. & Man. Cases, p. 478.
 
 ]()3 
 
 CHAPTER II. 
 
 riNAL COMMITMENT. 
 
 Section 149. Nature of tlie Offense to Appear, 
 
 150. Authority to Commit. 
 
 151. To Whom Directed. 
 
 152. Seal. 
 
 153. The Code. 
 
 § I-IO. Nature of the Offense to A^jpear. 
 
 By tlie common law, a warrant of commitment for an 
 offense must, upon its face, show the cause of commitment 
 and the nature of the offense charged, so far at least 
 as to show that the same was within the jurisdiction of the 
 committing officer. Where the commitment is not for an 
 actual offense, but merely to obtain security against an 
 apprehended offense, the warrant must, upon its face, show 
 the cause of committal ; that is, the direction of the magis- 
 trate that the j^arty should find surety and the neglect of 
 such party to do so.'^ 
 
 This is also in accordance with the provisions of the 
 Revised Statutes on this subject, which direct the warrant 
 to specify the cause of commitment and the sum in which 
 security was required to be given.t 
 
 The particular sj^ecies of crime should be given with 
 convenient certainty, | and it is safe to set forth that the 
 party has been charged upon oath ; but this is not necessary 
 because a commitment for treason or for suspicion of it, 
 
 * Bradstreet m. Ferguson, 23 W., 641 ; Atkinson vs. Carty, 1 Jebb.& 
 Symes, R. Q. B.,Irel., 369. 
 fSR. S., 6th ed., 997. § 5. 
 X 2 Hawk. c. 16, § 16 ; 1 Hale, 584.
 
 164 
 
 without setting forth any particular accusation or ground 
 of suspicion, is valid, and because a commitment may be 
 super visum when an oath is not necessary.* 
 
 § 150. Authority to Commit, 
 
 In a case where it did not appear by the warrant that the 
 person committing had authority to commit, the court said, 
 "that it is not necessary that an authority to commit 
 should appear in a warrant of commitment,"t for that may 
 be supplied by averment. $ It is, however, usual and best to 
 state the authority, § but that is always upon the petition. 
 
 In -a conviction, an authority to convict must appear, 
 because convicting is a judicial act, but an authority to 
 commit need not appear in a warrant of commitment, 
 because the issuing of such a warrant is a ministerial act. 
 If it be not necessary that an authority to commit should 
 appear in a warrant of commitment, the court will never 
 intend a want of authority in the person who issued the 
 warrant ; but, until the contrary appears, will presume that 
 he had an authority.il 
 
 § 151. To Whom Directed. 
 
 The commitment should be " to the sheriff or any 
 constable, and to the jailer and keeper of the prison," and be 
 generally to carry the party to prison.^T When thus directed, 
 it commands the former to convey the prisoner into the 
 custody of the latter, and the latter to receive and keep 
 him.^" 
 
 The commitment should point out the place of imprison- 
 ment and should have an apt conclusion, namely, to detain 
 
 * 1 Ch. Cr. L., 110; 2 Va. Cases, 504. 
 
 t Kex Vfi Goodall, Sayer, 129 (1754). 
 
 X Burn's Justice of the Peace, title Commitment iii. 
 
 §6 Mod., 73, 75. 
 
 II Rexf«. Talbot, Mich., 4 Geo. 2. 
 
 •^ 2 Hawk. C. 16, §13; 2 Strange, 934; 1 Ld. Raym., 424. 
 
 *•■ 1 ArchCr. and PI., 149.
 
 165 
 
 the party " until he shall be discharged by due course of 
 law ; which words are sufficient where the party is com- 
 mitted for an offense not bailable, and where he is com- 
 mitted for want of sureties, it is usual to direct the jailer 
 to keep the prisoner in his said custody for want of sureties, 
 or until he shall be discharged by due course of law.* 
 
 § 152. Seal 
 
 Blackstone and other early elementary writers claim that 
 the warrant of commitment should have a seal,f which 
 claim it seems was based on the authority of a casej now 
 regarded as of no value, since the point in question did not 
 arise, but was merely a dictum put by way of illustration,§ 
 and that the warrant does not ex vi termini, by force of the 
 term, import an instrument under the seal of the court, but 
 signifies no more than an authority,!! unless particularly 
 required by an act of parliament. IT 
 
 The current of decisions in England, siiice those to the 
 contrary referred to, has been that a seal to a warrant even 
 in criminal cases is not necessary. In Scotland, also, the 
 warrant need not be under seal,** and in this State it is now 
 also settled that no seal is necessary. ft 
 
 § 153. The Code. 
 
 The directions of the Code respecting the final com-" 
 mitment are as follows : 
 
 " If the magistrate order the defendant to be committed 
 * * * he must make out a commitment, signed by 
 
 * 1 Chit. Cr. L., p. 114. 
 
 f 4 Blackstone, 290; 1 Hale, 577; 3 Hale, 111; Dalt. C, 117 ; 3 Inst., 
 76. 
 
 X 14 Hen. VIII., fol. 16. 
 
 § Amer. ed., Willes Kep., 412, note c. 
 
 lib. 
 
 IBuller (N. P. Cas.), 83. 
 
 ** 2 Allison's Crim. Law, 122, 123. 
 
 ft Bennac m. People, 4 Barb., 31 ; Millett tis. Baker, 42 Barb., 215 ; Gano 
 rs. Hall, 42 N. Y., 67.
 
 166 
 
 liim, with liis name of office, and deliver it, witli tlie defend- 
 ant, to the officer to whom he is committed, or if that 
 officer be not present, to a peace officer, who must immedi- 
 ately deliver the defendant into the proper custody, 
 together with the commitment."^" 
 
 " The commitment must be to the following effect : 
 'County of Albany [or as the case may be]. 
 ' In the name of the people of the State of New York : 
 ' To the sheriff of the county of Albany,' [or in the city 
 and county of New York, ' to the keeper of the city prison 
 of the city of New York].' 
 
 ' An order having been this day made by me, that A. B. 
 be held to answer to the court of , upon a 
 
 charge of [stating briefly the nature of the crime], you are 
 commanded to receive him into your custody and detain 
 him, until he be legally discharged. 
 
 ' Dated at the city of Albany, [or as the case may be], 
 this day of , 18 . 
 
 ' C. D., Justice of the Peace, 
 
 [or as the case maybe].' " t 
 
 As to the transmission of the papers in the examination 
 see ante, § 104. 
 
 Proceedings respecting Courts of Special Sessions in Counties 
 
 other than New York. 
 
 " During the time allowed to the defendant to give bail, 
 and until judgment is given, he may be continued in the 
 custody of the officer, or committed to the jail of the 
 county to answer the charge, as the magistrate may 
 direct."! 
 
 " The commitment must be signed by the magistrate, 
 by his name of office, and must be in substantially the 
 following form : 
 
 ' The sheriff of the county of is required 
 
 to receive and detain A. B., who stands charged before 
 
 * § 213 f § 214. t Code, § 733.
 
 167 
 
 me for [designating the offense, generally], to answer the 
 charge before a court of special sessions in the town [or 
 city] of , [as the case may be]. 
 
 ' Dated at the town [or city] of , the 
 
 day of , 18 . 
 
 'CD., Justice of the Peace of the town 
 [or city] of , [as 
 
 the case may be].' "" 
 " When committed, the defendant must be delivered to 
 the custody of the proper officer, by any peace officer in the 
 county to whom the magistrate may deliver the commit- 
 ment.''! 
 
 " Either before or after his committal, or upon being 
 committed, the defendant must, if he require it, be ad- 
 mitted to baih"i 
 
 * Code, § 734. f Code, § 735. t Code, ^ 736.
 
 168 
 
 :p.a.i^t ix. 
 
 FUGITIVES FROM JUSTICE. 
 
 Chapter I. General Doctrine. 
 
 II. Who may be treated i.s Fugitives. 
 
 III. The Arrest. 
 
 IV. Hearing on the Arrest. 
 V. Surrender, etc. 
 
 VI. Commitment, etc. 
 VII. Bail. 
 
 CHAPTEK I. 
 
 GENEEAL DOCTRINE. 
 
 Section 154. Relation of the United States to Foreign 
 Powers. 
 
 155. Relation of individual States to Foreign 
 
 Powers. 
 
 156. Relation between the States and the United 
 
 States, between the States themselves, the 
 Territories and States, and between the 
 Territories. 
 
 § 154. Relation of the United States to Foreign Poivers. 
 
 A foreign power cannot carry away a fugitive from its 
 justice found within our territory ; for the arrest would be 
 an unwarrantable interference with the local sovereignty of
 
 169 
 
 our government.* The surrender of fugitives from justice 
 being against the doctrine of our tribunals, is undertaken 
 only in obedience to the terms of treaties with foreign 
 governments.! The need of legislation when required to 
 give effect to treaties has been suj)plied, not by a jiar- 
 ticular statute for each treaty, but by general provisions 
 for all.:]: 
 
 § 155. Relation of Individual States to Foreign Powers. 
 
 The whole subject of foreign intercourse is committed to 
 the Federal Government by the Constitution of the United 
 States, and therefore the power to surrender to a foreign State 
 a fugitive from justice, does not reside in any of the States 
 of the Union, but belongs to the Federal Government ex- 
 clusively. § In any event, no State can be compelled to 
 take such action. || 
 
 The provisions of the N. Y. Revised Statutes,! providing 
 for the surrender of foreign criminals, is unconstitutional, 
 and a warrant issued by the Governor in pursuance thereof 
 is void.** 
 
 § 156. /^elation between the States and the United States, be- 
 tiveen the States themselves, the Teri^itories and States^ 
 and between the Territories. 
 
 Since the United States Government has a local juris- 
 diction within the States, it needs no help from the States 
 to arrest its criminals found within State limits.tt 
 
 As between the States the Constitution of the United 
 
 * 1 vol. Bish. on Crim. Law, § 135 ; 1 Kent's Com. 3G-37, notes b, c, d. 
 
 fib. 
 
 X 1 Bishop Cr. Proc, § 224. 
 
 §1 Bish. Cr. L., §135. 
 
 II The British Prisoners, 1 Woodbury & Min. C.C. R., GG. 
 
 11 R. S., 164, §§8-11. 
 
 ** People vs. Curtis, 50 N. Y., 321. 
 
 ffl Bish. Cr. Proc, § 223 b.
 
 170 
 
 States* being in tlie nature of a treaty stipulation between 
 the States, requires the surrender of fugitives from justice 
 on demand of the executive of the State whence they es- 
 caped.t As between the territory and the States and 
 territories there is a statutory provision applicable regulat- 
 ing the surrender.! 
 
 ♦Const. U. S., art. iv., § 2. 
 tlBish. Cr. L., § 135. 
 X 1 Bish. Crim Proc, § 223 b.
 
 171 
 
 
 
 CHAPTEE 
 
 II. 
 
 
 WHO 
 
 MAY 
 
 BE TREATED 
 
 AS 
 
 FUGITIVES, 
 
 Section 157. 
 
 The 
 
 Offense. 
 
 / 
 
 
 158. 
 
 The 
 
 Fleeing from 
 
 Ju 
 
 stice. 
 
 159. 
 
 Where to be Found. 
 
 
 160. 
 
 The Code. 
 
 
 
 § 157. The Offense. 
 
 "When the proceeding is under the comity of nations, 
 crimes of great atrocity or deeply affecting the public safety, 
 only are recognized." As between the States, the offense 
 must be treason, felony, or other crime, as is provided by 
 the Constitution of the United States. t 
 
 The words " other crime '' include statutory as well as 
 common law offenses, and as laid down by Taney, C. J., em- 
 brace every act forbidden and made punishable by a law 
 of the State in which it was committed. The words 
 " treason and felony," in being associated with the word 
 " crime," were deemed to be to exclude the possible con- 
 struction that political offenders were not to be surrendered 
 the same as others. | 
 
 § 158. The Fleeing from Justice. 
 
 To constitute a " fleeing," he need only depart from the 
 State without waiting to abide the consequences of his act,§ 
 and it is immaterial that the place to which he goes is his 
 own home. 
 
 * Matter of Clark, Wend., 212. 
 + U. S. Const., art. iv., § 2. 
 X\ Bish. Crim. Proc. §220. 
 § lb.
 
 172 
 
 It must appear that the person sought to be apprehended 
 or detained has left the State in which he committed the 
 crime for the purj)0se of escaping punishment for it.* 
 
 § 159. Where to be Found. 
 
 The fugitive must be found within the territory where 
 the process sought for will be recognized and can be 
 executed. 
 
 §160. The Code. 
 
 A person charged in any State or territory of the United 
 States with treason, felony, or other crime, who shall flee 
 from justice, and be found in this State, must, on demand 
 of the executive authority of the State or territory from 
 which he fled, be delivered up bj' the governor of this 
 State, to be removed to the State or territory having juris- 
 diction of the crime.t 
 
 * Degant««. Michael, 2 Carter (Ind.), 396. 
 
 t § 837.
 
 173 
 
 / 
 
 CHAPTEE III. 
 
 THE ARREST. 
 
 Section 161. Ou a Requisition. 
 
 162. Anticipating a Requisition. 
 
 § 161. On a Requisition. 
 
 It is not within the scope of this work to treat of arrests 
 by the executive of the State after requisition, as they 
 involve no commitment. The question of the guilt or in- 
 nocence of the person demanded is irrelevant to the ex- 
 ecutive. That question is to be investigated and deter- 
 mined by the courts of the State where the alleged crime 
 was committed.* 
 
 Under the act of Congress, no steps are required in the 
 State to which the fugitive has fled, until a requisition has 
 been made by the governor of the State in which the 
 offense has been committed.f 
 
 The act of Congress must be strictly complied with. The 
 certificate of the Secretary of State cannot take the place of 
 the requirement of the act that the authentication shall be 
 by the governor or chief magistrate.:]: 
 
 Judges of the United States Courts have no jurisdiction 
 over proceedings under any extradition treaty, unless a pre- 
 vious requisition has been made by the foreign government 
 upon the government of the United States, and the au- 
 thority of the United States Executive has thereupon been 
 obtained to arrest the fugitive. § 
 
 * People v. Brady, 56, N. Y., 187; 1 Arch. Cr. Pr. and PI., p. T26, 
 Pomeroy's Notes. 
 
 f People V. Brady, 56 N. Y., 182. 
 
 X Solomon's case, 1 Abb. Prac. Rep. N. S., 347. 
 
 § 1 vol., Arch. Crim. Pr. & PL, p. 121.
 
 174 
 
 § 162. Anticipating a Bequisition. 
 
 Some of the State statutes authorize the supposed fugi- 
 tive to be first complained of, examined and committed 
 where he is found, to await a requisition from the proper 
 executive ; some do not have such provisions ; while others 
 provide an intermediary course. In some of the States 
 such preliminary steps are permissible without the aid of 
 a statute- — all of which proceedings are merely auxil- 
 iary and seek to secure the end named in the Constitution 
 and laws of the United States, the ultimate transfer of the 
 accused on requisition by the authority of the State or 
 territory where the offense is alleged to have been com- 
 mitted.! 
 
 To authorize a magistrate to arrest and examine an al- 
 leged fugitive from another State it must be distinctly 
 alleged by a complaint in writing on oath : 
 
 1. That a crime has been committed in the foreign State. 
 
 2. That the accused— the identity of the prisoner as the 
 party charged must appear:!: — has been charged in such 
 State with the commission of such crime. 
 
 3. That he has fled from the State. 
 
 4. That he is here. § 
 
 It would be well for magistrates to require in all such 
 cases an authenticated coj^y of the charge or complaint 
 made in the foreign State. II 
 > The magistrate may look behind a warrant in order to 
 ascertain whether the complaint made is sufficient to con- 
 fer jurisdiction.TT And the sufficiency of the indictment 
 should be inquired into before surrendering, to determine 
 if a crime is charged.'** 
 
 * 1 Bish. Cr. Proc, § 223, 
 
 f Spear's Law of Extradition, p. 244. 
 
 1 18 Alb. L. J., 369. 
 
 § Matter of Hey ward, 1 Sandf. R., 701. 
 
 lib. 
 
 II In re Heilbron, 1 Park Cr. Rep., 429. 
 
 ** People vs. Brady, 56 N. Y., 192; Matter of Heilbron, 1 Park Cr., 429.
 
 175 
 
 Courts do not take judicial notice of the laws of another 
 State. The presumption, in the absence of proof, is that 
 its courts agree with our own in declaring and interpret- 
 ing the common law." 
 
 o 
 
 The Code. 
 
 The Code provides that any magistrate may issue a war- 
 rant for the apprehension of a person charged in any State 
 or territory of the United States with treason, felony or 
 other crime who shall flee from justice and be found in this 
 State,t and an exemplified copy of an indictment found, or 
 other judicial proceeding had against him in the State or 
 territory in which he is charged to have committed the 
 offense, may be received as evidence before the magistrate.^ 
 
 * o6]N\ Y., 183. 
 t Code, § 828. 
 X Code, § 829.
 
 176 
 
 CHAPTER IV. 
 
 THE HEARING ON THE ARREST. 
 
 Section 163. How mucli shall be Sliown. 
 
 164. The Code. 
 
 165. Eeview of the Proceedings. 
 
 § 163. How much shall he Shown. 
 
 On a hearing to release a party proposed to be detained 
 for surrender to a foreign government, it was held that the 
 evidence to warrant such detention must be sufficient to 
 commit the party for trial if the offense were committed 
 here.* 
 
 It appears to be the practice both in England and the 
 United States before surrendering a foreign fugitive from 
 justice to demand that probable cause be shown that the 
 defendant was guilty of an offense for w^hich he is de- 
 manded, t 
 
 § 161. The Code. 
 
 The Code provides that : 
 
 " The proceedings for the arrest and commitment of the 
 person charged are in all respects similar to those pro- 
 vided in this Code for the arrest and commitment of a 
 person charged with a public offense committed in this 
 State ; except," as has appeared, " that an exemplified copy 
 of an indictment found, or other judicial proceeding had 
 against him, in the State or territory in which he is charged 
 
 * Matter of Daniel Washburn, 3 Wheeler's Grim. Cases, p. 483 ; S. C. , 4 
 Johns. Chan. R., 106. 
 
 t Wharton's Cr. PI. & Pr., § 56, 8th ed.
 
 177 
 
 to have committed the offense, maybe received as evidence 
 before the magistrate."* 
 
 " If, from the examination, it appear that the person 
 charged has committed the crime alleged, the magistrate 
 by warrant" must commit.f 
 
 " Immediately upon the arrest of the person charged, 
 the magistrate must give notice to the district attorney of 
 the county of the name of the person and the cause of his 
 arrest."! 
 
 " The district attorney must immediately thereafter give 
 notice to the executive authority of the State or territory, 
 or to the prosecuting attorney or presiding judge of the 
 criminal court of the city or county therein, having juris- 
 diction of the offense, to the end that a demand may be 
 made for the arrest and surrender of the person charged."§ 
 
 § 165. Review of the Proceedings. 
 
 A competent court may, on habeas corpus, revise the pro- 
 ceedings, and, if they are defective, discharge the fugitive. 
 But the question of actual or even probable guilt will not 
 be inquired into, nor will the formal sufficiency of the 
 indictment if it substantially charges a crime.!! 
 
 On a decision against a prisoner, tlie court allowed a 
 writ of error, but the statute not providing either for his 
 detention or bail in the interim, the court could not grant a 
 stay of proceedings.!" 
 
 * § 829. 
 
 f 830; see R. S., part iv., ch. ii., title ii., §§ 43, 43, 44, and 45. 
 
 t Code, § 832. 
 
 § Code, § 833. 
 
 I Bish. Grim. Proc, § 223 a. 
 
 t Matter of Clark, 9 Wend., 212. 
 
 12
 
 178 
 
 CHAPTEK V. 
 
 § 166. Surrender, etc. 
 
 The governor's warrant need not state facts constituting 
 the crime.* Under the Constitution of the United States 
 the governor of a State has no jurisdiction to surrender a 
 fugitive from justice of another State without a demand 
 from the executive of the latter.t 
 
 A governor making a requisition may aj^point an agent 
 to receive the fugitive ; and the governor on whom the 
 requisition is made may issue a warrant, authorizing that 
 agent "to take and receive into custody" the fugitive. 
 Such a warrant authorizes the agent to arrest.]: 
 
 The Executive Department of the State of New York has 
 adopted regulations governing applications to the governor 
 for requisitions on the governors of other States for the 
 surrender of fugitives from justice. § 
 
 On ivliai Charge to he Tried. 
 
 In cases where a fugitive is arrested on a demand from 
 a foreign State, he can onl}", according to the better view, 
 be tried for the offense for which the demand has been 
 made. Under the Constitution of the United States, 
 when a fugitive is transferred from State to State, he is 
 open in the second State to any prosecutions that may be 
 brousrht acj-ainst him in such State. || 
 
 * Matter of Clark, 9 Wend., 212. 
 
 f Solomon's case, 1 Abb. Prac, N. S., 347. 
 
 X 1 Arch C'r. Pr. & PI., p. 125, Pomeroy's Notes. 
 
 j5 Synopsis of them given in vol. 1, Colby's Grim. Law, p. 78. 
 
 II Wharcoa's Or. L. &, Pr., § 61, 8th e i.
 
 179 
 
 CHAPTER VI. 
 
 § 167. Commitment, etc. 
 
 The commitment should state the facts charged or found 
 to constitute the offense, with sufficient certainty to enable 
 the Court to determine what particular crime is charged.* 
 
 The Code provides : 
 
 " If, from the examination, it appear that the person 
 charged has committed the crime alleged, the magistrate, 
 by warrant reciting the accusation, must commit him to 
 the proper custody in his county, for a time specified in the 
 warrant, which the magistrate deems reasonable, to enable 
 the arrest of the fugitive under the warrant of the 
 executive of this State, on the requisition of the executive 
 authority of the State or territory in which he committed 
 the offense, unless he give bail * * * ^ or 
 until he be legally discharged, "t 
 
 When to he Discharged. 
 
 " The person arrested must be discharged from custody 
 or bail, unless before the expiration of the trial designated 
 in the warrant or undertaking, he be arrested under the 
 warrant of the governor of the State. "+ 
 
 Return to be Made. 
 
 " The magistrate must return his proceedings to the next 
 Court of Sessions of the county, which must thereupon 
 inquire into the cause of the arrest and detention of the 
 person charged, and if he be in custody, or the time for his 
 arrest have not elapsed, it may discharge him from deten- 
 
 * Matter of Leland, 7 Abb. Pr., X. S., 64. 
 
 t§830. 
 
 t§834.
 
 IbO 
 
 tion, or may order his undertaking of bail to be canceled, 
 or continue his detention for a longer time, or readmit him 
 to bail, to appear and surrender himself within a time 
 specified in the undertaking."* 
 
 CHAPTER VIL 
 
 § 168. Bail. 
 
 It has been held that bail cannot be taken in extradition 
 process, even when the State Constitution provides that all 
 prisoners shall be bailable by sufficient sureties.! This 
 does not apply to commitments awaiting executive war- 
 rants to deliver fugitives over to other States. 
 
 The Code provides that : 
 
 " A judge of the Supreme Court may admit the person 
 arrested to bail, by an undertaking, with sufficient sureties, 
 and in such sum as he deems proper, for his appearance 
 before him at a time specified in the undertaking, and for 
 his surrender, to be arrested upon the warrant of the gov- 
 ernor of this State." % 
 
 * 835. 
 
 t Wharton's Cr. PI. & Pr., 8th ed., § 35 a. 
 
 t % 831; see R. S., Part iv., ch. iL, title ii., § 44.
 
 181 
 
 WRITS OF HABEAS CORPUS, CERTIORARI, MAN- 
 DAMUS, AND PROHIBITION. 
 
 Chapter I. — General Remarks. 
 
 II. — Habeas Corpus. 
 III. — Certiorari. 
 IV. — Mandamus. 
 
 V. — Prohibition. 
 
 CHAPTER I. 
 § 169. General Remarks. 
 
 The consideration of the proceedings which have engaged 
 our attention would be incomplete and unsatisfactory with- 
 out a reference to the remedial steps that can be taken to 
 insure a proper administration of justice. The writs of 
 habeas corpus and certiorari furnish the usual means for 
 reviewing any illegal acts committed. The writs of man- 
 damus and prohibition may also be invoked to meet pecu- 
 liar conditions, when they will be the only approjDriate 
 process. The office of these several writs and the prac- 
 tice * and law concerning them have been treated of so fully 
 in other workst that only their salient features, bearing on 
 their utility respecting criminal arrests and examinations, 
 will be attempted to be presented. 
 
 * Forms of writs of habeas corpus and certiorari, of the allowance thereof, 
 and of the return thereto, 1 Park Cr. L., 224 ; see also Revised Statutes. 
 
 t Crary's Special Proceedings ; Wood on Mandamus ; Hurd on Ilabeaa 
 Corpus; Bacon's Abridgement ; Chitty's Criminal Law; Colby's Criminal 
 Law; Waite's Practice ; Arch.'s Cr. Pr. and PI. ; Wharton's Cr. Law, and 
 Bishop's Crim. Proc. are prominent works which may be consulted in con- 
 nection with the statutory provisions.
 
 182 
 
 CHAPTEK II. 
 
 § 170. Habeas Corpus. 
 
 Tlie writ of habeas corpus will relieve a prisoner from 
 illegal restraint, whetlier under a warrant of arrest or 
 unwarranted^ or illegal commitment to answer. This writ 
 brings up the prisoner, and those papers only under which 
 the jailer or police officer holds his prisoner, such as the 
 warrant or commitment, final or for examination.'^ 
 
 Formerly the depositions could only be brought up on a 
 writ of certiorari and in general on returns to writs of 
 habeas corpus — beyond what appears on the face of the 
 warrant of arrest or commitment will not be looked into ;t 
 but courts have conceded the right of prisoners, on writs 
 of habeas corpus, when in custody on criminal process 
 before indictment, to demand that the original depositions 
 be produced, to see if any crime is in fact imputed to them, 
 and the inquiry will by no means be confined to the return. 
 Facts out of the return may be gone into to ascertain 
 whether the committing magistrate may not have arrived at 
 an illogical conclusion upon the evidence given before him, 
 whether he may not have been governed by malice, or have 
 exceeded his jurisdiction, and whether he may not have 
 mistaken the law, or, in the language of Lord Ellenborough,:!^ 
 "to ascertain whether the commitment was not palpably and 
 evidently arbitrary, unjust, and contrary to every principle 
 of positive law or rational justice." 
 
 Confined within these limits, the inquiry can be effectual 
 for the protection of personal liberty against oppression 
 under color of legal process.§ 
 
 * 14 N. Y., 575, affirming 23 Barb., 179, 188; 1 Duer, 709, etc. 
 t 3 Hill, 159; 2 Sandf., 729. 
 tU East., 1. 
 
 § People V. Martin, 1 Park Cr. R., 197; People v. Tompkins, 1 Park. Cr. 
 R., 221.
 
 183 
 
 Courts will also inquire whether anything has arisen 
 since the commitment for putting an end to the imprison- 
 ment, or whether the committing magistrate had jurisdic- 
 tion, even though the necessary jurisdictional facts are 
 recited in the commitment.* 
 
 The proceedings, should there be any question about it, 
 may, in any event, be brought up by the writ of certiorari, 
 as ancillary to or in aid of the habeas corpus writ. 
 
 If the offense be not bailable, by the statute in this 
 State, the writ should be certiorari.f 
 
 The writ of habeas corpus does not, like writs of error 
 and certiorari, deal with errors or irregularities which ren- 
 der a proceeding voidable only, but with those radical 
 defects which render it absolutely void.:J: 
 
 On a commitment before indictment, the whole question 
 of guilt or innocence is open for examination on the 
 return to the writ of habeas corpus, and the inquiry is not 
 necessarily confined to an examination of the original de- 
 positions. Under our Revised Statutes, in such cases, the 
 proceedings in a habeas corpus are in the nature of an 
 appeal from the decision of the committing magistrate. 
 After indictment it is otherwise, because there are no 
 means of ascertaining upon what it was found. § 
 
 On the return of a habeas corpus, by our Revised Stat- 
 utes, testimony offered with the return may be supple- 
 mented with further testimony on the hearing thereof. 11 
 
 Though the warrant of commitment be defective, the 
 Supreme Court will not discharge the prisoner finally 
 for that reason ; but if a crime be made out upon the 
 depositions, the course is to discharge the prisoner pro 
 forma, but remand him to prison upon a special rule of 
 court. TF 
 
 *Wood on Mandamus, pp. 175-6; 5 Hill, 164; 3 R. S.,568, sec. 43. 
 
 f Wood on Mandamus, p. 186. 
 
 X Hurd on Habeas Corpus, p. 327, et seq. 
 
 § People V. Martin, 1 Park. Crim. R., 187. 
 
 I 2 R. S., p. 568, § 43. 
 
 T[ 5 Cowen, 39 ; see 3 East., 157.
 
 184 
 
 When a commitment has been held void on habeas 
 corpus, the papers are functi officio, and a new application 
 must be made if a new commitment is sought.^ 
 
 Bailing Prisoners. 
 
 The writ of habeas corpus is extensively used for the 
 purpose of causing a prisoner to be bailed, when bail is 
 refused in a bailable case, or excessive bail demanded. As 
 a general rule, upon such applications to bail, the court 
 requires to see the deposition ; and from thence, if they see 
 just cause, without regarding the regularity or irregularity 
 of the commitment, discharge or bail the prisoner. t 
 
 Res Adjudicata. 
 
 The principle of res adjudicata is held not to apply to 
 the Federal courts, which are not governed by the laws and 
 regulations of the States on the subject, but by the com- 
 mon law of England as it stood at the adoption of the Con- 
 stitution, subject to such alterations as Congress may see 
 fit to prescribe. 
 
 A subject in confinement has, according to a chief jus- 
 tice of the King's Bench at Chambers, a right to call upon 
 every court or magistrate in the kingdom, having jurisdic- 
 tion of the matter, to inquire into the cause of his being 
 restrained of his liberty. + 
 
 Even in the States where the principle of res adjudicata 
 respecting habeas corpus is held to apply, the decision of 
 the court of another State or of a court acting under a dif- 
 ferent legislative jurisdiction would not, it is thought, be 
 considered a bar to such proceedings. § 
 
 It is now settled in this State that previous adjudica- 
 tions in proceedings on habeas corpus are no answer to a 
 
 * People V. Walters, 15 Abb. Pr., N. S., 430. 
 f 1 Chitty's Crim. Law, 113. 
 
 Jin re Kaine. 3 Blatchf. Cir. Ct. Rep., 1 ; Matter of William Reynolds, 
 6Park. Crim. Rep., pp. 322, 323. 
 §6 Park. Cr. Rep., p. 323.
 
 185 
 
 new writ. A previous decision to the contrary* relating to 
 a controversy respecting the custody of an infant child, is 
 distinguished from one where a person is restrained of his 
 liberty.t 
 
 Contempt Proceedings. 
 
 Neither the justice nor the propriety of a commitment 
 for a contempt, made by a justice according to law, can be 
 inquired into upon the return to a writ of habeas corpus or 
 certiorari, if the contempt be charged in the commitment.^ 
 
 An order quashing a writ of habeas corpus can only be 
 reviewed upon appeal, a writ of error will not lie in such 
 case.§ 
 
 This writ is usually addressed to a sheriff, or other 
 officer (it issues as well to a private person), and com- 
 mands him to have the body of the person named at a 
 certain time and place. Though it is of ancient English 
 common law origin, the leading idea of it — deliverance by 
 summary legal process from illegal confinement — may be 
 traced in the laws of other countries which derived none of 
 their principles of jurisjDrudence, or rules of procedure, 
 from English law.H 
 
 * Mercein vs. People, 25 Wend., 64. 
 
 ■(• People vs. Brady, 56 N. Y., 192. 
 
 t 2 R. S., 567, § 40. 
 
 § People ex rel. Donovan vs. Conner, 64 N. T., 481. 
 
 \ Hurd on Habeas Corpus, p. 145 (1858).
 
 156 
 
 CHAPTEE III. 
 
 § 171. Certiorari. 
 
 The examination of tlie magistrate being usually of short 
 duration, the writ of certiorari is rarely applied for pend- 
 ing the same, but it is customary to await the final decision 
 of the justice and then to bring up the whole examination 
 for review. The writ, however, may be applied for at any 
 stage of the proceedings by some one in interest, showing 
 that some person is aggrieved, reciting the complaint* 
 The writ is designed to prevent only a substantial injury.t 
 
 The granting of the writ rests largely in the discretion of 
 the court and is not a matter of strict right. It is to be 
 allowed or denied according to the justice and equity of 
 
 the case.:}: 
 
 The English courts allow the issuing of the writ at any 
 time, not only as a proceeding in error, but also as a means 
 of supervising and guiding the courts below, at any period 
 of their progress in an action. Consequently, when the 
 writ is sustained, the court above will commence de novo, 
 having no regard to the place where the cause left off in 
 the inferior court. § 
 
 In this country, on the other hand, a certiorari is gener- 
 ally employed as a writ of error strictly. The court below 
 is allowed to proceed in the case under consideration, so 
 far as its judicial authority extends, and no interference 
 occurs until a final determination has been reached, and 
 there are substantial grounds for apprehending unjust and 
 erroneous adjudications.il 
 
 * Golden vs. Bolts, 12 Wend., 234. 
 
 f People vs. Mayor, 5 Barb., 43. 
 
 :t65 Barb., 435; id., 1; 52 X. Y., 445; 42 Cal., 252. 
 
 §Tidd'sPrac.,412. 
 
 11 People>. Betts, 55 N. Y., GOO.
 
 1S7 
 
 The ofl&ce of a common law certiorari is, in strictness, 
 merely to bring np the record of the proceedings of an in- 
 ferior court or tribunal, to enable the court of review to 
 determine whether the former has proceeded within its juris- 
 diction, and not to correct mere errors in its proceedings.* 
 
 The office of this writ has been enlarged in cases where 
 the relator has no other available remedv, and where in- 
 justice would be done if the writ were not permitted to do 
 its work ; in which case the j)ower and authority of inferior 
 tribunals to do the act complained of, and all questions of 
 regularity of their proceedings, that is, all questions 
 whether the inferior tribunal has kept within the boundaries 
 prescribed for it by the express terms of the statute law, 
 or by well-settled principles of the common law, will be in- 
 quired into.t Thus errors of all inferior tribunals, where 
 they have exceeded their jurisdiction or proceeded illegally, 
 are reached, or where the action is palpabh^ unjust or op- 
 pressive, though the result ensues from the exercise of 
 discretion, as where adjournment is refused, and a decision 
 made without giving a party a fair hearing. :{; 
 
 A certiorari does not lie to a justice where he does not 
 act judicially.! 
 
 It is directed to all the persons whose return is neces- 
 sary to enable the Court to determine the regularity or va- 
 lidity of the proceedings of the officer or tribunal sought 
 to be reviewed, and the fact that the j^erson is out of office 
 is no objection. If he has the custody of the record, the 
 writ lies against his executor or administrator even after 
 his death, when the record is in their custody |i 
 
 " If there is a full and adequate remedy by appeal, cer- 
 tiorari does not lie,^ or if there is an ample remedy by 
 
 * People ex rel. vs. Commissioners of Highways, etc., 30 N. Y., 7"J. 
 
 f People vs. Assessors, 39 X. Y., 81 ; People vs. Betts, 5") X. Y., (iOO. 
 
 \ Wood on Mandamus, page 207. 
 
 § Pngsley v. Anderson, 3 ^Vend., 468; Pearsal v. Commissioners of Xoith 
 Hempstead, IT ibid., 15 ; People v. Walters, G8 N. Y., 403. 
 
 I Wood on Mandamus, pp. 206, 207; 65 Barb., 176; 24 Mich., 182. 
 
 ^46 Ga. , 41 ; 8 Xev. 84 ; Saratoga and Washington R. H. Co. v. McCoy, 
 51 How. Pr., 378.
 
 188 
 
 writ of error ; " but the mere fact tliat an appeal lies does 
 not necessarily deprive a party of tlie remedy. If an appeal 
 has been unlawfully denied, or if the party by fraud, acci- 
 dent or mistake has been deprived of his appeal, certiorari 
 
 is the proper remedy.t 
 
 The power of the judge or other officer issuing writs of 
 habeas corpus and certiorari under the statutes of New York 
 is defined by such statute to be either to remand to custody 
 the person alleged to be detained, or to discharge such 
 person, or in proper cases to let him to baiL 
 
 No power exists in him to command an inferior tribunal 
 before which a proceeding is pending at once to fully com- 
 mit the petitioner for such writs for trial with or without 
 bail, or to fully discharge him. To concede such power to 
 command an inferior tribunal having jurisdiction before it, 
 would be to establish a dangerous precedent, even if it 
 appeared that the inferior tribunal was exceeding its 
 authority in the mode of conducting the proceedings before 
 ii The only power to interfere in such cases would be by 
 the mandamus of a superior court, or possibly by that form of 
 a certiorari which would bring up for review to a court 
 having jurisdiction for that purpose the alleged illegal 
 assumption of power on the part of the inferior tribunal 
 
 The order to be made after the hearing on the return to 
 writs of habeas corpus and certiorari cannot, under the 
 statutes, be of the nature of a writ of mandamus to the 
 inferior tribunal ; and no authority to enforce such an order 
 exists. If, in obedience to an order to the examining magis- 
 trate either to fully commit the prisoner for trial, with or 
 without bail, or fully discharge him, he accepts bail for 
 trial, and such order is reversed, on certiorari, the effect of 
 such reversal will not be to reinstate the proceedings in 
 the officer taking bail, whatever might have been its effect if 
 
 *1 Ired., N. C.,408. 
 
 t Wood on Mandamus, pp. 207, 208 ; 2 Murph., N. C, 100 ; 3 Jones, N. 
 C, 195 ; T. U. P. Charlt., Ga., 38 ; 1 Taylor, N. C, 15 ; 4 Greene, Iowa, 94.
 
 189 
 
 he had refused to let the defendant to bail and persisted in 
 such refusal.* 
 
 Besides the common law remedy of certiorari, provision 
 is made by statute in most of the States for remedies in 
 addition to the common law causes for which it will issue. 
 
 The return to the common law writ of certiorari is conclu- 
 sive.t It must be taken as true ; if false the remedy is by 
 action.^ 
 
 The service of a writ operates as a stay, unless the order 
 or judgment has begun to be executed. § 
 
 * People ex rel. Phelps vs. Donohue. 14 Hun., p. 133. 
 
 t6 Hun., 625; 73 N. Y., 437. 
 
 J Wood on Mandamus, p. 202. 
 
 § Patchen v. Mayor, etc., 13 Wend., 604 ; Conover s Case, 5 Abb. Pr., 182.
 
 190 
 
 CHAPTEK IV. 
 
 § 172, Mandamus. 
 
 Should the relator seek to compel the performance of a 
 ministerial duty, or any act not of a judicial character, the 
 appropriate writ will be mandamus.* 
 
 It will not lie for the correction of judicial errors. The 
 inferior court may be required to proceed to judgment, but 
 what particular judgment shall b^ rendered cannot be dic- 
 tated. " Ministerial officers and corporations may be re- 
 quired to act in a particular manner, or even to reverse 
 what they have already done. If a judicial officer does 
 that which he has no power to do, a mandamus will direct 
 what should be done, but not control the manner of exer- 
 cising- a judicial act.t It will not lie to control the action of 
 an inferior court in a matter within its discretion.:}; Nor if • 
 the discretion is not and cannot be governed by any fixed 
 principles or rules. § 
 
 When a magistrate refused to examine a prisoner who 
 offered himself in an examination required by statute, a 
 writ of habeas corpus was refused, and it was stated that 
 the only effectual remedy in such cases would seem to be a 
 mandamus commanding the justice to proceed in the 
 matter. II 
 
 In general a mandamus will not be granted if the party 
 has another specific legal remedy. H 
 
 * People V. County Judge of Clinton, 13 How. Pr., 277 ; People v. Shea, 
 7 Hun., 303. 
 
 f People V. Shea, 7 Hun.. 303. 
 
 12 Brightley's Dig., p. 2584, § 33. 
 
 § People V. Superior Court, 5 Wend., p. 114. 
 
 I Tn re Haeley, 22 Vt., 364. 
 
 1 People V. Stevens. 5 Hill, 616 ; People v. Wood, 2 Abb. Pr., 90.
 
 191 
 
 CHAPTER V. 
 
 § 173. Frohihition. 
 
 This writ is rarely resorted to, as it has no utility but in 
 extraordinary cases. 
 
 It is the name of a writ issued by a superior cou^'t di- 
 rected to the judge and parties of a suit in an inferior 
 court, commanding them to cease from the prosecution of 
 the same, upon a suggestion that the cause originally, or 
 some collateral matter arising therein, does not belong to 
 that jurisdiction, but to the cognizance of some other 
 court.* 
 
 The writ of prohibition may also be issued when, havincr 
 jurisdiction, the court has attempted to 23roceed by rules 
 differing from those which ought to be observed, or when 
 by the exercise of its jurisdiction, the inferior court would 
 defeat a legal right. f 
 
 It does not lie to a ministerial officer to stay execution 
 of process in his hands, nor to prohibit the exercise of 
 ministerial power on the part of a judicial officer,J but 
 all acts based upon a decision judicial in its nature and af- 
 fecting either a public or private right are judicial acts 
 and are reached by the writ. § 
 
 De facto officers cannot be restrained from acting pend- 
 ing proceedings to determine their title. || 
 
 *2 vol., Bouvier's Law Diet., p. 384, cases there cited. 
 
 fib. 
 
 X Wood on Mandamus, pp. 141 and 142. 
 
 § lb. 145. 
 
 J lb. 147.
 
 I isr ID E ix:. 
 
 PAGE. 
 
 INTKOUUCTION. - Arrest without process by officer X 
 
 Private person X 
 
 Cases, three classes before magistrate IX 
 
 Commitment of offenders IX 
 
 Examination, what necessary to understand XI 
 
 Felonies IX 
 
 Grand Jury IX 
 
 Hearing, main XI 
 
 Preliminary to trial XI 
 
 Judicial system a growth X 
 
 Study of X 
 
 Misdemeanors IX 
 
 Intoxication IX 
 
 Bastardy IX 
 
 Disorderly conduct IX 
 
 Persons IX 
 
 Ordinances, corporation IX 
 
 Sanitary IX 
 
 Vagrancy IX 
 
 N. Y. statutes X 
 
 Code of criminal procedure X 
 
 Printing, art of X 
 
 Summary convictions IX 
 
 Superstition X 
 
 Abduction, for prostitution 
 
 Accessories, proceedings against, where 
 
 Accomplices, uncorroborated statement of 
 
 Code 
 
 Accusation (see Complaint), reciting in warrant. 
 
 In commitment. 
 
 Adjournment pending examination 
 
 Affirmation (see Oath). 
 
 13 
 
 SECTION. 
 
 PAGE. 
 
 11 
 
 14 
 
 16 
 
 24 
 
 11 
 
 14 
 
 40 
 
 56 
 
 42 
 
 61 
 
 149 
 
 163 
 
 79 
 
 90-3
 
 194 
 
 SECTION. PAGE. 
 
 Appeal, ancient (private person against another). . 5 3-5 
 
 Arraignment of prisoner (see Prisoner) 55 70-1 
 
 Arrest (see Warrant) 47-58 65-72 
 
 Outlawry 47 65-6 
 
 Roman law 48 66 
 
 Theory of the 49 66 
 
 What is an 50 66-7 
 
 Notice of arrest essential 50 67 
 
 Officer, powers and duty of 51-3 67-9 
 
 Without unnecessary violence 53 68 
 
 For larceny, taking possession of goods . . 53 69 
 
 Code 53 69 
 
 For misdemeanor, not on Sunday or by 
 
 night, unless 54 69-70 
 
 For felony, at any time 54 70 
 
 Where to arraign prisoner , 55 70 
 
 Detention until arraigned 53 69 
 
 Manner of, not inquired into 57 71-2 
 
 In going to or returning from court 58 72 
 
 Assault, conviction for, no bar to prosecution for 
 
 murder 36 47 
 
 Authority, central and local 19 27 
 
 Bail 105-45 135-60 
 
 Acceptance of, ends jurisdiction 140 156 
 
 What is 105 135-6 
 
 Purpose of 106 137 
 
 In what cases 107-8 138-9 
 
 Enlargement of bailing power 107 138-9 
 
 Code 108 139-40 
 
 Amount of 109-10 141 
 
 Elements to be considered 109 141 
 
 Excessive bail. 110 141 
 
 Examination, is it necessary before bailing ?. . 135 155 
 
 Means proper 141 157 
 
 Power to take, application, etc _. . 111-24 142-7 
 
 General principles Ill 142 
 
 Ancient justices of the peace 112 143 
 
 U. S. offenses against 113 143-4 
 
 The several states 114 144 
 
 Code 115 144-5 
 
 When committing magistrate has no power 116 145 
 
 How long he has power 117 145 
 
 Notice of application to district attorney. . . 118 145-6 
 Magistrate or court elsewhere may require 
 
 notice 119 146 
 
 Order or certificate granting or denying. . . . 120 146-7
 
 iv:} 
 
 New application, etc 
 
 Penalties for illegal applications 
 
 Certain powers not limited 
 
 Whose decision final 
 
 Sureties 
 
 Qualifications of 
 
 Justification 
 
 Examination of 
 
 Order thereon 
 
 Securing themselves 
 
 New 
 
 Bond 
 
 Form of 
 
 Discharge on taking bail, form of 
 
 Certificate on 
 
 Liability of 
 
 Officer bailing, duties and liabilities of 
 
 Release ou, at any time. 
 
 Tender, prisoner must 
 
 Unlawful 
 
 Ministerial or judicial act 
 
 Deposit, in lieu of 
 
 \^ Surrender 
 
 Bench warrant (see Warrant). 
 
 Bigamy, prosecution for, where 
 
 Binding over (see Holding to answer and Probable 
 
 cause). 
 Burglary in one county and property taken into 
 
 another 
 
 Commitment 
 
 Temporary 
 
 Final 
 
 Nature of offense to appear 
 
 Authority to commit . . 
 
 How directed 
 
 Seal 
 
 Code 
 
 Special sessions outside of New York 
 
 county 
 
 Complainant 
 
 Deficient understanding of 
 
 Infamous person as 
 
 Husband and wife as 
 
 Liability of 
 
 Name, age, residence and occupa- 
 tion of, necessary 
 
 SECTION. 
 
 PAGE. 
 
 121 
 
 147 
 
 122 
 
 147 
 
 123 
 
 147 
 
 124 
 
 147 
 
 12o-9 
 
 148-9 
 
 125 
 
 148 
 
 126 
 
 148 
 
 127-8 
 
 149 
 
 129 
 
 149 
 
 137 
 
 156 
 
 142 
 
 157 
 
 130-1 
 
 150-3 
 
 131 
 
 . 152-3 
 
 132 
 
 153 
 
 133 
 
 154 
 
 134 
 
 154 
 
 135-41 
 
 155-7 
 
 138 
 
 156 
 
 136 
 
 156 
 
 139 
 
 156 
 
 143 
 
 157-8 
 
 144 
 
 158-9 
 
 145 
 
 159-60 
 
 16 
 
 21 
 
 16 
 
 22 
 
 14G-.-)3 
 
 161-7 
 
 146-8 
 
 161-2 
 
 149-53 
 
 163-7 
 
 149 
 
 163 
 
 150 
 
 164 
 
 151 
 
 164-5 
 
 152 
 
 165 
 
 153 
 
 165-7 
 
 153 
 
 166-7 
 
 9-12 
 
 10-16 
 
 10 
 
 12 
 
 10 
 
 12 
 
 10 
 
 13 
 
 12 
 
 14-16 
 
 35 
 
 45
 
 196 
 
 SECTION. PAGE. 
 
 Preliminary examination of, must be 
 
 under oath 29 35 
 
 When corroborative proof is neces- 
 sary 
 
 Abduction for prostitution 
 
 Accomplices 
 
 Perjury or subornation of 
 
 Seduction under promise of mar- 
 riage 
 
 Treason 
 
 Who is 
 
 Who may be 
 
 Witnesses for 
 
 Complaint (see Prosecution) inferior districts 
 
 Lodging the 
 
 Made to magistrate, when process to 
 
 arrest is sought, where 
 
 Must be recited in warrant, when 
 
 Oral 
 
 Need accuse no paiticular person by 
 
 name 
 
 Particular cases 
 
 N. Y. State 
 
 Duelling and prize flighting 
 
 Bigmay, polygamy 
 
 Certain larcenies 
 
 Eeceiver of stolen property 
 
 Certain burglaries and robberies. . . 
 Wounds in one county and death in 
 
 another 16 22 
 
 Crimes committed partly in one 
 county and partly in another. 
 
 Offenses on board vessels, etc 
 
 Crimes committed on railway trains 
 
 Nuisances 
 
 Offenses near boundary of a county 
 
 Accessories 
 
 Libel 
 
 When a second prosecution is barred 
 Proceedings on (see Examination before 
 
 warrant) . 
 Separate and distinct from examina- 
 tion unnecessary 
 
 Where to be made 
 
 Common law 
 
 Constitution of the U. S 
 
 11 
 
 13-14 
 
 11 
 
 14 
 
 11 
 
 14 
 
 11 
 
 13 
 
 11 
 
 13-14 
 
 11 
 
 14 
 
 9 
 
 10-11 
 
 10 
 
 11-13 
 
 30 
 
 38-40 
 
 17 
 
 25 
 
 1-26 
 
 1-33 
 
 13-17 
 
 17-25 
 
 42 
 
 61 
 
 25 
 
 32-3 
 
 28 
 
 35 
 
 16 
 
 19-25 
 
 16 
 
 21 
 
 16 
 
 21 
 
 16 
 
 21 
 
 16 
 
 21-2 
 
 16 
 
 22 
 
 16 
 
 2Z 
 
 16 
 
 23 
 
 16 
 
 23 
 
 16 
 
 23 
 
 16 
 
 23 
 
 16 
 
 24 
 
 16 
 
 24 
 
 16 
 
 24 
 
 16 
 
 25 
 
 33 
 
 43 
 
 13-17 
 
 17-25 
 
 13 
 
 17-8 
 
 14 
 
 18
 
 197 
 
 SECTION. 
 
 The doctrine in the states 15 
 
 N. Y. state 15 
 
 Written 2G, 34 
 
 Certiorari, writ of, purpose of 171 
 
 English practice 171 
 
 Enlarged in certain cases 171 
 
 Not granted if remedy exists by appeal 
 
 or error.... 171 
 
 Not, when justice does not act judi- 
 cially 171 
 
 Substantial injury only prevented .... 171 
 
 This country, as a writ of error 171 
 
 To whom directed 171 
 
 Children as witnesses 10 
 
 •Composition, system of 4 
 
 Compurgation (see Prosecutions), trial by 5 
 
 Conditional examinations 32 
 
 Contempt (see Witnesses). 
 
 Coroner's inquisition, proceedings upon 85 
 
 Corporation, proceedings against 95 
 
 Corroborative proof, when necessary 11 
 
 Counsel (see Examination after arrest). 
 
 Crime (see Fugitives from justice), originally a 
 
 private offense only 3 
 
 On board vessels, etc 16 
 
 On railway trains 16 
 
 Partly in one county and partly in another . 16 
 
 Place of perpetration 37 
 
 Statement of, before magistrate 38 
 
 'Verification or proof of, where 15 
 
 Criminal intent, when necessary to allege and 
 
 prove 39 
 
 Custodian of stolen goods (see Warrant). 
 
 Defendant (see Prisoner. ) 
 
 Deposit in lieu of bail (see Bail). 
 
 Depositions as evidence (see Examination after arrest). 
 
 Detention of prisoner (see Warrant) 53 
 
 Districts, inferior 17 
 
 Duelling, where offenders may be prosecuted 16 
 
 Evidence (see Examination after arrest). 
 Executive officers, withdrawal of judicial powers 
 
 from 18 
 
 Examination before warrant 27-39 
 
 Preliminary and incidental questions. 27-34 
 Distinguished from examination after 
 
 arrest 27 
 
 33, 
 
 PAGE. 
 
 18-9 
 
 19 
 
 43, 44 
 
 186-9 
 
 186 
 
 187 
 
 187-8 
 
 187 
 
 186 
 
 186 
 
 187 
 
 12 
 
 8 
 
 4 
 
 41-2 
 
 103 
 
 115 
 13-14 
 
 3 
 
 23 
 23 
 23 
 49 
 50 
 18 
 
 53 
 
 69 
 26 
 21 
 
 26 
 34-53 
 34-44 
 
 34-5
 
 198 
 
 When arrest without warrant, no 
 preliminary examination 
 
 Code 
 
 Duty of the magistrate to investigate 
 The complaint need accuse no par- 
 ticular person by name 
 
 Preliminary inquiry may be to ascer- 
 tain the name of offender 
 
 How much must be proved by examin- 
 ation of complainant 
 
 Oath 
 
 Complainant and witnesses must be 
 
 under oath 
 
 Roman law 
 
 N. Y. state 
 
 Form of 
 
 Penal code of China 
 
 Witnesses for complainant (see Sub- 
 poena) 
 
 Detention of witnesses — 
 
 Common law 
 
 N. Y. state 
 
 Code 
 
 Constitution N. Y. state 
 
 Whether examination to be in 
 
 writing 
 
 Revised statutes 
 
 Code 
 
 Complaint separate and distinct from 
 
 examination unnecessarj' 
 
 Written complaint 
 
 What to be elicited on the examina- 
 tion 
 
 Parties 
 
 Code 
 
 Time 
 
 Statutes of limitation 
 
 Place 
 
 Statement of the offense 
 
 Intent 
 
 After arrest 
 
 History of 
 
 Original practice 
 
 Development of 
 
 Evidence on trial 
 
 Code 
 
 SECTION. 
 
 PAGE. 
 
 37 
 
 34 
 
 27 
 
 35 
 
 28 
 
 35 
 
 28 
 
 35 
 
 28 
 
 35 
 
 28 
 
 35 
 
 29 
 
 35 
 
 29 
 
 35 
 
 29 
 
 35 
 
 29 
 
 36-7 
 
 29 
 
 37 
 
 29 
 
 37 
 
 30 
 
 38-40 
 
 33 
 
 41 
 
 32 
 
 43 
 
 83 
 
 42 
 
 32 
 
 43 
 
 bd 
 
 ■4a-3 
 
 33 
 
 43 
 
 33 
 
 43 
 
 33 
 
 43 
 
 34 
 
 43-4 
 
 35-9 
 
 45-53 
 
 35 
 
 45 
 
 35 
 
 45 
 
 36 
 
 45-9 
 
 36 
 
 47 
 
 37 
 
 49-50 
 
 38 
 
 50 
 
 39 
 
 53 
 
 76-84 
 
 81-100 
 
 
 81-6 
 
 70 
 
 81-3 
 
 77 
 
 83-6 
 
 78 
 
 87-9 
 
 78 
 
 88 note
 
 191) 
 
 SECTION. PAGE. 
 
 Detention of prisoner pending 79 90-5 
 
 Constitution U. S 79 90 
 
 Eevised statutes, X. Y 79 90 
 
 Unreasonable commitment void. . . 79 91 
 
 What is reasonable time 79 91-3 
 
 Pending decision 79 93 
 
 Offenses against general govern- 
 ment and other states 79 93 
 
 Code 79 92-3 
 
 N. Y. city 79 93 
 
 Other states 79 93 
 
 Remand, verbal or written 80 9-1 
 
 Code 80 94 
 
 N. Y. city 80 95 
 
 Other states 80 95 
 
 Where prisoner to be detained.... 81-4 96-100 
 
 General remarks 81 96 
 
 How in England 83 96-7 
 
 N. Y. state 83 97 
 
 N. Y. city 84 98-100 
 
 Order and manner of proceeding gen- 
 erally 85-98 101-24 
 
 Prosecution 85-8 101-7 
 
 Order of proceeding 85 101-3 
 
 Code 85 103-3 
 
 Coroner's inquisition 85 108 
 
 Witnesses, how examined 83 104 
 
 Prisoner to be present 87 104-5 
 
 With counsel if desired 87 105-6 
 
 How deijositions taken down .. . 88 106 
 
 Code 88 100-7 
 
 Defense 89-95 108-15 
 
 Introductory remarks 89 108-9 
 
 Early conceptions 90 109-10 
 
 State's evidence 90 110 
 
 Revised statutes, etc 91 110 
 
 When defendant's examination 
 
 unnecessary 91 111 
 
 Spirit of the examination of 
 
 prisoner 93 111-13 
 
 Irons on prisoner 93 113 
 
 Prisoners may testify (?) 94 113-14 
 
 Code 95 114-115 
 
 Copies of depositions 95 115 
 
 Corporations, proceedings against 95 115 
 
 Separation of witnesses 96 116-18
 
 200 
 
 SECTION. PAGE. 
 
 Waiving examination 97-8 119-24 
 
 Code 98r 124 
 
 Fees (see Witnesses). 
 
 Feud, opposition to the law 2 23 
 
 Fore-oath, required from an accuser 40 55 
 
 Fugitive from justice 154-68 168-80 
 
 General doctrine 154-6 168-70 
 
 Relation U. S. to foreign powers 154 168-9 
 
 States to foreign powers 155 169 
 
 States to U. S., to themselves and 
 
 territories 156 169-70 
 
 Who treated as fugitives 157-60 171-2 
 
 Offense 157 171 
 
 Fleeing from justice 158 171-2 
 
 Where to he found 159 172 
 
 Code 160 172 
 
 Arrest on requisition 161 173 
 
 Anticipating same 162 174-5 
 
 Code 162 175 
 
 Hearing on 163-5 176-7 
 
 How much to be shown 163 176 
 
 Code 164 176-7 
 
 Review of proceedings 165 177 
 
 Surrender, etc 166 178 
 
 On what charge tried, commitment, 
 
 etc 166-7 178-9 
 
 When discharged 167 179 
 
 Return to be made 167 179-80 
 
 BaQ 168 180 
 
 Goods, offense of stealing, may be prosecuted in 
 
 any county where carried 16 21 
 
 Receiver of stolen 16 22 
 
 Grand jury, origin of, in England 6 6-8 
 
 Habeas corpus, writ of, office of 170 182-5 
 
 What papers it brings up 170 182 
 
 Extent of inquiry in, bail, etc 170 182-4 
 
 Has nature of appeal, under N. Y. 
 
 revised statutes 170 183 
 
 Commitment defective 170 183 
 
 Void 170 184 
 
 Res adjudicaia 170 184-5 
 
 Contempt proceedings 170 185 
 
 Holding to answer (Probable cause) 99-104 125-34 
 
 The term probable cause 99 125 
 
 Roman law 100 126 
 
 German conceptions and subsequent pro- 
 gress 101 126-8
 
 201 
 
 SECTION. PAGE. 
 
 Present views IO3 129-3O 
 
 General remarks 103 130-2 
 
 The code IO4 130.4 
 
 Order for commitment 104 133 
 
 Transmission of papers 104 133-4 
 
 Election of place of trial 104 134 
 
 No preliminary examination when 104 134 
 
 Husband and wife as witnesses (see Witnesses) ... 10 13 
 
 Indictment 6 g.g 
 
 Issues of fact joined upon, where tried. 15 19 
 For special causes the supreme court 
 
 may remove 15 19 
 
 In certain larcenies, may be found in 
 
 any county 16 21 
 
 Conviction for assault no bar for 
 
 murder 36 47 
 
 For crime other than murder 36 48 
 
 May be found within the term limited. 36 48 
 When found, within meaning of the 
 
 statute of limitation 36 49 
 
 Not invalid by reason of irregulari- 
 ties, etc 42 61 
 
 Infamous persons, testimony of 10 12 
 
 Informant (see Complainant). 
 Information (see Complaint). 
 
 Inquisition, coroner's 85 103 
 
 Intent (see Criminal intent). 
 
 Jails, etc 83 97 
 
 Justice, acts judicially (see the several writs) .... 40 56 
 
 Acts ministerially (see the several writs) . 46 64 
 
 Jurisdictional questions 23 29 
 
 Larceny committed abroad and goods brought 
 into this State, the oifender may be 
 indicted in any county into which 
 
 the goods are carried 16 22 
 
 Warrant for, valid, despite omission to 
 
 give the value of property 42 61 
 
 Libel, by publication, persons residing in or out 
 
 of state 16 24 
 
 Limitation, statute of (see Exam, before warrant). 
 
 Magistrate (see Complaint), jurisdiction 17 25 
 
 Neglect of duty 24 31 
 
 To investigate criminal accusations. . . 28 35 
 
 May issue subpoenas 30 39 
 
 Mandamus, writ of, when it lies 172 190 
 
 Reaches ministerial duties 172 190
 
 202 
 
 Cannot control judicial act 
 
 Nor discretionary acts 
 
 Refusal to examine prisoner 
 
 Not issued, if another legal remedy 
 
 exists 
 
 New hearing 
 
 New York City, examination and detention of 
 
 prisoner in 
 
 Remand, verbal or written, in. . 
 Where prisoner to be de- 
 tained in . . 
 
 New York State, where to submit a complaint in. 
 Who may issue warrants in .... 
 
 Jails, etc 
 
 Nuisance, on or near the boundary lines of the 
 counties of New York, Westchester and 
 
 Queens 
 
 Outlawry 
 
 Oath (see Examination before warrant). 
 
 Offenses (see Crime) on board vessels, etc 
 
 Near boundary of a county 
 
 Against the United States 
 
 Committed on different days 
 
 Should not be barred by statute of limi- 
 tation 
 
 Statement of 
 
 Officer (see Warrant) must serve subpoena 
 
 Powers of 
 
 Must have warrant in his possession 
 
 Ordinances, city, how set forth 
 
 Ordeal, open to the prisoner 
 
 Parties fsee Examination before warrant), ques- 
 tions affecting 
 
 Perjury, charge of 
 
 Place (see Exam, before warrant), designation of. 
 
 Practice in the city of New York, etc 
 
 Prohibition, writ of 
 
 When inferior court has no jurisdic- 
 tion 
 
 Or attempts to proceed wrongfully. . 
 Not to ministerial officer or act. . . . 
 
 May restrain judicial acts 
 
 De facto officers. 
 
 Prosecutions, origin of public 
 
 Self-help 
 
 Vengeance and feud 
 
 SECTION. 
 
 PAGE. 
 
 172 
 
 190 
 
 173 
 
 190 
 
 172 
 
 190 
 
 172 
 
 
 103 
 
 130 
 
 79 
 
 93 
 
 80 
 
 95 
 
 84 
 
 98-100 
 
 15 
 
 19 
 
 22 
 
 29 
 
 83 
 
 97 
 
 16 
 
 23-4 
 
 47 
 
 65-6 
 
 16 
 
 23 
 
 16 
 
 24 
 
 21 
 
 28 
 
 36 
 
 46 
 
 36 
 
 47 
 
 38 
 
 50-1 
 
 30 
 
 39 
 
 51-67 
 
 67-77 
 
 52 
 
 68 
 
 38 
 
 52 
 
 5 
 
 5 
 
 35 
 
 45 
 
 11 
 
 13 
 
 37 
 
 49-50 
 
 37 
 
 49 
 
 173 
 
 191 
 
 173 
 
 191 
 
 173 
 
 191 
 
 173 
 
 191 
 
 173 
 
 191 
 
 173 
 
 191 
 
 1-8 
 
 1-9 
 
 1 
 
 1-2 
 
 2 
 
 2,3
 
 203 
 
 Crime, originally a private offense 
 
 only 
 
 Composition of crimes 
 
 Appeals 
 
 Compurgation 
 
 Ordeal 
 
 Wager of battle 
 
 Indictment 
 
 Roman law 
 
 Colonial law 
 
 When conviction or acquittal is bar 
 
 to second 
 
 Prisoner (see Examination after arrest). 
 Probable cause (see Holding to answer and Bind- 
 ing over). 
 
 Property stolen 
 
 Taken under search warrant 
 
 Polygamy, where prosecution 
 
 Prize fighting, violation of the law against 
 
 Proof, buruen of, on the prosecution, when was. . 
 Prisoner (see Exam, after arrest), treatment of . . 
 
 Escaping, may be retaken 
 
 Arraignment of 
 
 Detention of, pending examination 
 
 To be present at examination 
 
 With counsel if desired 
 
 Spirit of the examination of 
 
 Irons on 
 
 May testify ('?) 
 
 Prosecutor (see Complainant). 
 
 Recognizance (see Bailj. 
 
 Return (see Transmission of papers). 
 
 Robbery in one county and stolen property taken 
 
 into another 
 
 Roman law, accusation must first be made in 
 
 writing by the 
 
 No arrest until sentence pronounced. 
 
 Search warrant 
 
 Defined 
 
 Caution in issuing 
 
 Upon what grounds 
 
 Probable cause, supported by 
 
 ' oath, etc 
 
 Constitution of the United States. 
 
 Ought to name the person in whose 
 
 building the stolen property is 
 
 SECTION. 
 
 PAGE. 
 
 3 
 
 3 
 
 4 
 
 3 
 
 5 
 
 3-5 
 
 5 
 
 4-5 
 
 5 
 
 5 
 
 5 
 
 5 
 
 6 
 
 5-8 
 
 7 
 
 8-9 
 
 8 
 
 9 
 
 Ifi 
 
 16 
 
 7 
 48 
 59-75 
 59 
 60 
 61 
 
 63 
 62 
 
 63 
 
 9.T 
 
 53 
 
 69 
 
 70 
 
 78 
 
 16 
 
 21 
 
 16 
 
 21 
 
 13 
 
 15 
 
 53 
 
 68-9 
 
 53 
 
 . 68 
 
 55 
 
 70 
 
 79 
 
 90-5 
 
 87 
 
 104-5 
 
 87 
 
 105-6 
 
 93 
 
 111-3 
 
 93 
 
 113 
 
 94 
 
 113-4 
 
 23 
 
 8 
 66 
 73-80 
 73 
 74 
 74 
 
 75 
 
 75
 
 SECTION. 
 
 PAGE. 
 
 63 
 
 75 
 
 64 
 
 76 
 
 65 
 
 76 
 
 66 
 
 77 
 
 67 
 
 77 
 
 68 
 
 77 
 
 69 
 
 77-8 
 
 70 
 
 78-9 
 
 70 
 
 79 
 
 70 
 
 79 
 
 71 
 
 79 
 
 204 
 
 Before issuing, magistrate must 
 
 examine on oath 
 
 When to be issued 
 
 Form of 
 
 By whom served 
 
 Powers of oificer 
 
 When may be executed in night time 
 When to be executed and returned. 
 Respecting the property taken 
 
 under 70 78 
 
 Return of, and inventory of pro- 
 perty taken 
 
 Transmission of papers 
 
 Taking of goods by officer 
 
 Taking testimony by magistrate . . 
 Reduction to writing of testimony 
 
 by witnesses 71 79, 80 
 
 Maliciously procuring search war- 
 rant, a misdemeanor 
 
 Peace officer exceeding authority . . 
 Custodian of goods to be arrested . 
 Persons charged with felony sup- 
 posed to have dangerous wea- 
 pons, etc 
 
 Self-help, doctrine of 
 
 Seal, warrant sufficient without a 
 
 On commitment 
 
 Seduction under promise of marriage, complaint of 
 
 Special sessions, outside of New York city 
 
 Statutory offense, should be described with clear- 
 ness and certainty 38 51-3 
 
 Statutes of limitation (see Exam, before warrant). 
 
 Subornation of perjury, charge of 
 
 Subpoena, form of 
 
 To bring books and papers, form of . . . 
 
 Disobedience of 
 
 By whom served 
 
 How served 
 
 To attend out of the county where 
 
 witness resides, must be indorsed . 
 
 District attorney may issue, when for 
 
 people 
 
 May be issued by magistrate on infor- 
 mation 
 
 When necessary to send into a foreign 
 country, sheriff shall serve and 
 make return 30 40 
 
 73 
 
 80 
 
 73 
 
 80 
 
 74 
 
 80 
 
 75 
 
 80 
 
 1 
 
 1 
 
 44 
 
 63 
 
 153 
 
 165 
 
 11 
 
 13-4 
 
 153 
 
 166-7 
 
 11 
 
 13 
 
 30 
 
 38 
 
 30 
 
 38-9 
 
 30 
 
 39 
 
 30 
 
 39 
 
 30 
 
 39 
 
 30 
 
 40 
 
 30 
 
 40 
 
 30 
 
 39
 
 205 
 
 SECTION. PAGE. 
 Issued by a magistrate, shall be in- 
 dorsed upon the book thereof 31 41 
 
 Inserting names in, with intent to 
 
 deceive, is a misdemeanor 31 41 
 
 Fees of witnesses 31 41 
 
 Stolen property (see Property stolen). 
 
 Sureties (see Bail). 
 
 Time (see Exam, before warrant). 
 
 Treason, witnesses necessary to obtain a warrant 
 
 for 11 14 
 
 Transmission of papers (see Holding to answer) . . 70, 133 79, 134 
 
 Vengeance, appendage to the Law 2 3 
 
 Wager of battle, trial by 5 5 
 
 Words, the use of, at length 36 46 
 
 Wounds in one county and death in another 16 22 
 
 Warrant (see Arrest) 40-75 54-80 
 
 To whom to apply to for 18-24 26-31 
 
 Withdrawal of judicial powers from ex- 
 ecutive officers 18 26-7 
 
 Central and local authority 19 27 
 
 Criminal, in England 20 27-8 
 
 Offenses against the U. S., by whom 
 
 issued 21 28 
 
 N. Y. state 22 29 
 
 Jurisdictional questions 23 29-30 
 
 Magistrate's neglect of duty 24 31 
 
 Caution to be observed in applications for 38 51 
 
 When to be issued 40 54-8 
 
 Anglo-Saxon laws 40 55 
 
 In Denmark 40 55 
 
 Code 40 56-7 
 
 Among the 1-Jomans 40 56 
 
 Should not be issued on bare sus- 
 picion •. 40 56 
 
 N. Y. revised statutes 40 57 
 
 Policy of the law 40 58 
 
 Requisites of a 41-6 59-64 
 
 Must be directed 41 59-60 
 
 Common law 41 59 
 
 Code 41 60 
 
 N. Y. revised statutes 41 60 
 
 Recite the accusation 42 60-1 
 
 Common law 42 60 
 
 N. Y. revised statutes 42 61 
 
 Code 42 61 
 
 In case of larceny 42 61
 
 SECTION. 
 
 PAGE. 
 
 42 
 
 16 
 
 43 
 
 61-3 
 
 43 
 
 61 
 
 43 
 
 63 
 
 44 
 
 63 
 
 44 
 
 63 
 
 44 
 
 63 
 
 45 
 
 63-4 
 
 45 63 
 
 206 
 
 Apparent and merely clerical error 
 
 Designation in, of the person to be ar- 
 rested 
 
 In England nntil 1763 
 
 Code 
 
 Whether to l^ave a seat 
 
 N. Y. revised statutes 
 
 Code 
 
 Other features 
 
 Should be dated and signed by magis- 
 trate 
 
 Should direct where prisoner is to be 
 brought 
 
 Form of 
 
 Justice acts ministerially 
 
 Execution of, every person must aid officer 
 in 
 
 Persons of the officer in executing 
 
 Officers exhibiting 
 
 Officer must have in his possession. . . . 
 
 Must be lawful on the face 
 
 When and where to be executed 
 
 Code 
 
 Indorsement of 
 
 Return on the 
 
 Code 
 
 Search (see Search warrant). 
 
 Bench 106 137 
 
 Witnesses (see Subpoena), deficient understand- 
 ing of ... . 
 
 Children, age of, as 
 
 Husband and wife as 
 
 Preliminary examination of 
 
 For complainant 
 
 Summoned and refusing to attend or to 
 answer 
 
 Refusing to produce papers in his pos- 
 session 
 
 Fees of 
 
 Detention of 
 
 In cases of felony magistrate shall bind 
 by recognizance, and may require 
 surety 
 
 Shall not be unreasonably detained. . . 
 
 Names, ages, addresses and occupations 
 
 of, necessary 35 45 
 
 45. 
 
 64 
 
 45 
 
 64 
 
 46 
 
 64 
 
 51 
 
 67 
 
 51 
 
 67 
 
 52 
 
 67 
 
 52 
 
 68 
 
 52 
 
 68 
 
 54 
 
 69 
 
 54 
 
 69 
 
 54 
 
 70 
 
 56 
 
 71 
 
 56 
 
 71 
 
 10 
 
 12 
 
 10 
 
 12 
 
 10 
 
 13 
 
 29 
 
 35 
 
 30 
 
 38 
 
 30 39 
 
 30 
 
 39 
 
 31 
 
 41 
 
 32 
 
 41 
 
 32 
 
 42 
 
 32 
 
 42
 
 207 
 
 XT . ^ SECTION. PAGE. 
 
 How examined op ^„, 
 
 Separation of g-._g 
 
 Writ of habeas corpus to secure testimony of a 
 
 P'^isoner 3q 
 
 Return to, by jailer g^ 
 
 Writs (see Habeas Corpus, Certiorari, Man- 
 damus, and Prohibition).
 
 f^.
 
 AA 000 695 357 
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 This book is DUE on the last date stamped below. 
 
 JUN 2 1994 
 
 UCLA lAVJ LIBRARY 
 
 OCT 01 2000 
 
 315
 
 
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