(b) May arrest felon.-A felon may be arrested by any person without a warrant whether he had time to obtain a warrant. (Holley v. Mix, 3 Wend., 350; People v. Adler 3 Park., 249.) (c) Reasonable ground of suspicion enough.-If an innocent person be arrested by a private person, the party arresting is excused, if a felony was in fact committed, and there were reasonable grounds to suspect the person rested. Id. Not so, however, if no felony was committed. (Id.) (d) Any person may arrest felon.-Any person has a right to arrest a felon and bring him before the proper authority, and it is the duty of every citizen to do so. (People v. McAdler, 1 Wheeler's cases, 101; People v. Adler, 3 Park., 249.) And he may do so either at the time of the commission of the felony or subsequent thereto. (Willis v. Warren, 17 How., 100.) (e) Not so in case of misdemeanor.-A private person may arrest a felon without warrant, but for misdemeanor must have a magistrate's warrant. (People v. Adler, 3 Park., 249.) § 184. Must inform the party of the cause of arrest, except when actually committing the offense or on pursuit after escape.-A private person, before making an arrest, must inform the person to be arrested of the cause thereof, and require him to submit, except when he is in the actual commission of the crime, or when he is arrested on pursuit immediately after its commission. § 185. Must immediately take prisoner before a magistrate, or deliver him to a peace officer.-A private person, who has arrested another for the commission of a crime, must, without unnecessary delay, take him before a magistrate, or deliver him to a peace officer. CHAPTER VI. RETAKING, AFTER AN ESCAPE OR RESCUE. SECTION 186. May be at any time, or in any place in the State. 187. May break open a door or window, if admittance refused. § 186. May be at any time or in any place in the state.—If a person arrested escape or be rescued, the person, from whose custody he escaped or was rescued, may immediately pursue and retake him, at any time, and in any place in the state. (a) Where may be retaken.-An officer making a fresh pursuit after a prisoner who has escaped through his negligence, may retake him at any time after, wherever he finds him in the State, either in the same or different county. Barb. Cr. Law, p. 45. Rescues and escapes are considered the same offense. (Ib.) § 187. May break open a door or window, if admittance refused. -To retake the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a building. CHAPTER VII. EXAMINATION OF THE CASE, AND DISCHARGE OF THE DEFENDANT OR HOLDING HIM TO ANSWER. SECTION 188. Magistrate to inform defendant of the charge, and his right to counsel. 189. Time to send, and sending for counsel, 190. On appearance of counsel, or waiting for him a reasonable time, examination to proceed. 191. When to be completed; adjournment. 192. On adjournment, defendant to be committed, or discharged on deposit of money. 193. Form of commitment. 194. Depositions, to be read on examination, and witnesses examined. 196. Defendant to be informed of his right to make a statement. 198, 199. Statement, how taken. 200. How reduced to writing, and authenticated. 201. After statement or waiver, defendant's witnesses to be examined. 202. Witnesses to be kept apart. 203. Who may be present at examination. 204. Testimony how taken, and authenticated. 205. Depositions and statement, how and by whom kept. 206. Defendant entitled to copies of depositions and statement. 207. Defendant, when and how to be discharged. 208. When and how to be committed. 209. Order for commitment. 210. Certificate of bail being taken. 211. Defendant to choose how he shall be tried. 212. Order for bail on commitment. 213, 214. Form of commitment. 215. Undertaking of witnesses to appear, when and how taken. 218. Witness to be committed, on refusal to give security for ap pearance. 219. Witness, unable to give security, may be conditionally examined. 220. Last section not applicable to prosecutor or accomplice. 221. Magistrate to return depositions, statement and undertakings of witnesses, to the court. § 188. Magistrate to inform defendant of the charge, and his right to counsel.-When the defendant is brought before a magistrate upon an arrest either with or without warrant on a charge of having committed a crime, 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 before any further proceedings are had. (a) The benefit of counsel should be given to every one arrested or accused of a crime at every step of the proceedings. People ex rel. Burgess v. Risley 1 N. Y. Cr. R., 492. (b) Not an oral charge.-The charge must be read, it is not an oral charge; it must be taken either from the information, or the warrant or some record. People ex rel Baker v. Beatty, 4 N. Y. Cr. R., 287. (e) This section does not apply to petit larceny. People v. Clark, 9 N. Y. St. Rep., 412. § 189. Time to send, and sending for 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 town or city, as the defendant may name. The officer must, without delay and without fee, perform that duty. (a) Allowed an interview with counsel..-Defendant is entitled to have an interview with his counsel. People ex rel. Burgess v. Risley, 1 N. Y. Cr. R. 492. (b) If desired by the accused he has the right to have his counsel present during the examination. (People v. Restell, 3 Hill, 289. § 190. (Amended 1882.) On appearance of counsel, or waiting for him a reasonable time, examination to proceed.-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 therefor, 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 provided in section two hundred and ten; and in that case witnesses in attendance or shown to be material for the people may be required to appear and testify, or to be examined conditionally as prescribed in sections two hundred and fifteen, two hundred and sixteen, two hundred and seventeen, two hundred and eighteen, two hundred and nineteen and two hundred and twenty. (a) Under section 2054 Civil Code.-Unless the defendant is arrested for a misdemeanor under section 2054 of the Code of Civil Procedure, the magistrate has no jurisdiction whatever in the case. The magistrate issuing such warrant having exclusive jurisdiction. People v. Navagh and Milne, 4, N. Y. Cr. R,. 289. § 191. (Amended 1882,. When to be completed; adjournment.The examination must be completed at one session, unless the magistrate, for good cause shown, adjourn it. The adjournment cannot be for more than two days at each time, [] unless by consent or on motion of the defendant. (a) Magistrate must have prisoner before him.-A magistrate has no authority to commit for a hearing on a subsequent day until the accused has been first brought before him. (Pratt v. Hill, 16 Barb., 303; see cases cited under § 165, ante.) (b) Crime against United States.—A state magistrate may commit for a further hearing touching a crime against the United States. (Ex parte Smith, 5 Cow., 273.) In a temporary commitment by a magistrate for further examination on a charge of larceny, not necessary to state whether it is grand or petit. People v. Nash,5 Park., 473; 16 Abb., 281.) (c) Must be completed in reasonable time.-The examination must be completed in a reasonable time. Barb., Cr. Law, page 1092. § 192. On adjournment, defendant to be committed, or discharged on deposit of money.-If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody, upon his giving bail to appear during the examination, or upon the deposit of money as provided in this Code, to make sure of his appearance at the time to which the examination is adjourned. (a) Commitment limited.—A commitment for further examination must not be made use of as a commitment for trial. Barb., Cr. Law, page 1092. § 193. Form of commitment.-The commitment for examination is by an indorsement signed by the magistrate, 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 the city and county of New York, "to the keeper of the city prison of the city of New York." (a) Technical name of crime.-It is not necessary that in a warrant of commitment the crime should be called by its technical name. Matter of Gray, 2 N. Y., Cr. R., 302. (b) Must show probable guilt.-A warrant of commitment is irregular unless it show on its face that the justice issuing it had determined that there was a probable cause to believe the prisoner guilty of the offense charged. (People v. Rhoner, 4 Park,. 166.) (c) Must have prisoner present in order to commit.-A magistrate has no authority to commit a person accused of a criminal offense for a hearing on asubsequent day before the accused has been brought before him. (Pratt v. Hill, 16 Barb., 303. (d) Surety of peace; warrant in.-A justice, after deciding a case of surety of the peace, and permitting the defendant to depart, may subsequently issue a warrant of commitment and it is his duty to do so. (Gano v. Hall, 42 N. Y., 67.) (+) Commitment must be directed to an officer.-A warrant of commitment not directed to an officer or class of officers is void, and will be no protection to the officer who executes it. Russell v. Hubbard, 6 Barb., 654.) A State magistrate may commit for a further hearing touching a crime against the United States. (Ex parte Smith, 5 Cow., 273.) (f) At special sessions; form of.-A commitment issued upon conviction in special sessions need not contain a statement that the defendant, when brought before magistrate, requested to be tried by court of special sessions. (People v. Moore, (Park, 465.) (g) The commitment recited that the conviction proceeded upon proof by competent and satisfactory evidence of the charge made, and this is not contradicted. The admission of the facts alleged in the transverse furnish no ground for discharge on habeas corpus proceedings. (People ex rel. Van Ripper v. N. Y. C. Prot'y.) § 194. Depositions, to be read on examination, and witnesses examined. 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 defendant request it, or elects to have the examination, must summon for cross-examination the witnesses so examined, if they be in the county. He must also issue subpoenas for additional witnesses required by the prosecutor or defendant. (a) Deposition, when evidence.-If the witness was sworn before the examining magistrate, and the accused then had an opportunity to cross-examine Lim, the deposition can be used as evidence against the defendant if the witness is dead. sick, insane or cannot be found. Cooley on Const. Limitations, 3d. ed., 318. ante § 8. Cr. Code. (People v. Williams, 3 N. Y. Cr. R., 63.) (b) Deposition not evidence.-A deposition taken before a committing magistrate is not evidence against thed efendant, unless taken in presence and the right of cross-examination accorded. (People v. Restell, 3 Hill, 289.) A deposition taken under the police law of 1844 is not admissible without proof of inability to obtain the personal attendance of witnesses. (People v. Hadden, 3 Den., 320.) §195. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf.-The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf. (a) Prisoner must have counsel.-The defendant is entitled to the benefit of counsel at every stage of the proceedings. (People ex rel. Burgess v. Risley, 1 Cr. R. 492) To have the assistance of counsel of his defense, 1 Ed. R. S., p. 26. On a preliminary hearing, the defendent is entitled to have his examination taken, to have witnesses sworn and examined on his behalf, and have the assistance of counsel. (People v. Restell, 3 Hill, 289 ;) (b) Witnesses must be examined in presence of prisoner.-Witnesses before committing magistrate must be examined in presence of defendant, who must have right of cross-examining them. (People v. Restell, 3 Hill, 289 ; Bebee v. People, 5 id., 33.) § 196. Defendant to be informed of his right to make a statement.— When the examination 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 him, if he sees fit, to answer the charge and to explain the facts alleged against him; that he is at liberty to waive making a statement; and that his waiver cannot be used against him on the trial. (a) Prisoner's statement while under arrest is admissible.-It is not sufficient to exclude a statement by a prisoner that he was under arrest, or that it was made to the officer in whose custody he was, or in answer to questions put by him. (People v. McGloin, 1 N. Ÿ. Cr. R. 157; 91 N. Y. 241. Cox v. People, 80 N. Y. 500.) Voluntary confessions made in the course of judicial proceedings, are admissible in evidence. Post $395. (b) Prisoner's statement when inadmissible.-The examination of a person arrested on a criminal charge conducted in violation of the statutory provisions are not admissible in evidence against him on his trial for the offense. (People v. Mondon, 4 Cr. R. 552.) The provisions of section 395 of the Code of Criminal Procedure, only apply to voluntary confessions and do not change the statutory rules relating to the examination of persons charged with crime. (Id.) (c) Must be informed of his rights.-On a judicial examination before a magistrate of a prisoner charged with crime, the accused must be informed as to his rights in refusing to answer questions put to him. (People v. McMahon, 2 Park, 669, 670; see, also, People v. Hendrickson, 1 Park., 416.) (d) Time for counsel.-The prisoner should be allowed a reasonable time to send for counsel and and advise with him, and when this is refused, the deposition will not be used as evidence against him. Barb., Cr. Law, 1101, 3 Hill, 289. § 197. Waiver of his right and its effect. If the defendant wave his right to make a statement, the magistrate must make a note thereof, immediately following the depositions of the witnesses against the defendant. § 198. Statement, how taken.-If the defendant choose to make a statement, the magistrate must proceed to take it in writing, without oath, and must put to the defendant the following questions only: |