657. Preliminary Before Information-No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint. (Sec. 17, Art. 2, Const.)

658. Duty of Magistrate-When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination, before any further proceedings are had. (5667 R. L. 1910.)

659. Defendant Allowed Counsel.-He must also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena; Provided, however, that at any time before the examination is begun, a change of venue may be had, for

the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace. (5668 R. L. 1910.)

Application for change of venue must be made before subpoenas are issued. Sec. 770.

Defendant is entitled to change of venue from county judge. Cress v. State, 14 Okla. Cr. 521, 173 P. 854; Garnett v. State, 15 Okla. Cr. 332, 176 P. 769.

660. Defendant to Be Examined-The magistrate must without a jury, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, after waiting a reasonable time therefor, proceed to examine the case. The defendant may be sworn and testify in his own behalf as in civil cases. (5669 R. L. 1910.)

661. Adjournment of Examination-The examination must be completed at one session unless the magistrate for good cause adjourn it. (5670 R. L. 1910.)

662. Disposition of Defendant on Adjournment-If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody upon sufficient bail, or upon the deposit of money as provided in this code, as security for his appearance at the time to which the examination is adjourned. (5671 R. L. 1910.)

663. Commitment for Examination-The commitment for examination is by an indorsement signed by the magistrate, on the warrant of arrest, to the following effect:

"That within named A. B. having been brought before me under this warrant, and having failed to give bail for his appearance, is committed to the sheriff of the county of______

(Or to the marshal of the city of.

as the case may be), to await examination on the_________day of____ 19_-__, at‒‒‒‒‒‒‒o'clock, at which time you will have his body before me at my office. (5672 R. L. 1910.)

664. Duty of Magistrate at Examination-At the examination the magistrate must, in the first place, read to the defendant the complaint on file before him. He must also, after the commencement of the prosecution, issue subpoenas for any witnesses required by the prosecutor or the defendant. (5673 R. L. 1910.)

665. Preliminary Examination and Information-First. The witnesses must be examined in the presence of the defendant, and may be cross-examined by him. On the request of

the county attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, and may be used as provided in Section 293 of this compilation. In no case shall the county be liable for the expense in reducing such testimony, to writing, unless ordered by the county attorney.

Second. The county attorney may, on approval of the county judge or the district judge, issue subpoenas in felony cases and call witnesses before him and have them sworn and their testimony reduced to writing and signed by the witnesses at the cost of the county. Such examination must be confined to some felony committed against the statutes of the state and triable in that county, and the evidence so taken shall not be receivable in any civil proceeding. A refusal to obey such subpoena or to be sworn or to testify may be punished as a contempt on complaint and showing to the county court, or district court, or the judges thereof that proper cause exists therefor.

Third. No preliminary information shall be filed without the consent or endorsement of the county attorney, unless the defendant be taken in the commission of a felony, or the offense be of such character that the accused is liable to escape before the county attorney can be consulted. If the defendant is discharged and the information is filed without authority from or endorsement of the county attorney, the costs must be taxed to the prosecuting witness, and the county shall not be liable therefor.

Fourth. If a preliminary information be filed or is pending within three days before the grand jury convenes, or while it is in session, no examination shall be had, but the accused shall be held under bond or confined until the matter can be submitted to that grand jury or until that body adjourns.

Fifth. There shall be no preliminary examinations in misdemeanor cases. (S. L. 1913, 106.)

666. Order of Witnesses-When the examination of the witnesses on the part of the State is closed, any witness the defendant may produce must be sworn and examined. (5675 R. L. 1910.)

667. Magistrate to Keep Depositions-The magistrate or his clerk must keep the depositions taken on the examination,

if any have been taken, and the statement of the defendant, if any, until they are returned to the proper court, and must not permit them to be inspected by any person except a judge of a court having jurisdiction of the offense, the county attorney, and the defendant and his counsel. (5676 R. L. 1910.)

668. Violation of Provisions of Last Section-A violation of the provisions of the last section is punishable as a misdemeanor. (5677 R. L. 1910.)

669. Defendant Discharged, When-After hearing the proofs and the statement of the defendant, if he have one, or his testimony, if he testifies, if it appear either that a public offense has not been committed, or that a public offense has been committed, but there is not sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an indorsement on the complaint over his signature to the following 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. (5678 R. L. 1910)

670. Costs Taxed Against Complainant, When-If the defendant on a preliminary examination for a public offense be discharged as provided in the last section and if the magistrate find that the prosecution was malicious and without probable cause, he shall enter such judgment on his docket and tax the costs against the complaining witness which shall be enforced as judgments for costs in criminal cases, and execution, may issue therefor. (5679 R. L. 1910.)

671. Defendant Held to Answer-If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect:

It appearing to me that the offense named in the within complaint mentioned (or any other offense, 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. (5680 R. L. 1910.)

Defendant may be held for any offense which the evidence shows him guilty of. Trimble et al. v. Terr., 15 Okla. 620; Adair v. State, 15 Okla. Cr. 619, 180 P. 253.

An order to hold defendant to answer is not "a process issued on any final judgment of a court of competent jurisdiction." Without

legal and competent evidence, a commitment is void. Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461; Ex parte Turner, 3 Okla. Cr. 168, 104 P. 1071; Ex parte Beville, 6 Okla. Cr. 145, 117 P. 725.

672. Commitment When Offense Not Bailable-If the offense be not bailable, the following words or words to the same effect, must be added to the indorsement:

And that he is hereby committed to the sheriff of.. (or to the marshal of the city of----- or as the case may be.) (5681 R. L. 1910.)

673. When Offense Is Bailable-If the offense is bailable and bail is taken by the magistrate, the following words, or words to the same effect, must be added to the indorsement mentioned in the second preceding section:

And I have admitted him to bail, to answer, by the undertaking hereto annexed. (5682 R. L. 1910.)

674. If Bail Not Taken-If the offense is bailable, and the defendant is admitted to bail, but the bail have not been taken, the following words, or words to the same effect, must be added to such indorsement:

And that he is admitted to bail in the sum of________dollars, and be committed to the sheriff of the county of (or marshal of the city of___

or as the case may be),

until said bail be given. (5683 R. L. 1910.)

675. Commitment-If the magistrate order the defendant to be committed as provided in the three preceding sections, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or if that officer be not present, to a peace officer, who must immediately deliver the defendant into the proper custody, together with the commitment. (5684 R. L. 1910.)

676. Form of Commitment-The commitment must be to the following effect:

County of___.

The State of Oklahoma,

To the sheriff of the county of‒‒‒‒‒‒‒‒(or the marshal of the city of________ as the case may be):

An order having been this day made by me, that A B be held to answer upon a charge of (stating briefly the nature of the offense, with time, and place as near as may be), you are commanded to receive him into your custody, and detain him until he is legally discharged.