This is determined by the 7th. The place of imprisonment. direction of the commitment; which is to be to the "sheriff" of some county named, or, in the city and county of New York, to the "keeper of the city prison" of the city of New York. The officer must immediately deliver the defendant into the " "proper custody." And said sheriff or keeper is commanded, therein, to receive the defendant into his custody, and detain him, until he be legally discharged. (0) 8th. Time and mode of imprisonment. With respect to the time and mode of imprisonment, it is observed that the commitment should have an apt conclusion. The statute, as we have seen, has prescribed a particular form for this precept. At common law, the words used in the conclusion are, to detain the prisoner " until he shall be discharged by due course of law." (2) These words are said to be proper only when the party is committed for an offense not bailable; but when he is committed for want of sureties for a bailable offense, it is said to be 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." The mittimus may command the jailer to keep the party "in safe custody;" for although every jailer be bound by law to keep his prisoner in such custody, there can be no objection to reminding him of his duty in the mittimus. (r) If the conclusion be irregular, it will not vitiate the mittimus; and therefore, if a commitment "till further order," be made by a justice, yet a breach of prison under such a warrant would be an offense. if the party were removed by habeas corpus, yet if the cause and manner of his commitment be such as to [*573] require his detention in custody, or his finding sureties, he shall be bailed or committed accordingly, and not discharged; because the informal conclusion will be rejected. Such a warrant would be a good justification in an action of false imprisonment against the jailer, though the right conclusion be omitted, or the wrong conclusion inserted. It is a lawful warrant, notwithstanding the omission or incongruity of the conclusion, so as to make the voluntary permission of an escape or the breach of prison, a punishable offense. (s) And No precise mode of introducing the statement of the offense appears to be material. Either of the following forms will answer: (0) Code Cr. Pro., § 214. (g) 2 Hale, 123. 2 Hawk., ch. 16, § 18. (r) 2 Hawk. P. C., ch. 16, § 15. 1 Stra., 3. (s) 1 Hale, 584. charged with feloniously assaulting," &c., or "with having on,” &c., or "charged with a misdemeanor, viz., with having," &c., or "for that he, the said A. B., on," &c., and then recite the complaint. () The latter is decidedly the preferable form of introducing the statement of the crime for which the party is to be committed. (u) If the offense be against a statute, the description should close with the words "contrary to the form of the statute in such case made and provided." This, indeed, will be only continuing the description of the offense in the complaint, if the complaint be properly drawn; for the description in all offenses against penal statutes must conclude, "contrary to the form of the statute (or statutes) in such case made and provided.” (v) (52) It is the duty of the jailer to receive the party; and if he refuse, or unlawfully demand any thing for receiving him, it is an indictable offense. (2) If the jailer will not receive him, it is said the person who arrested him may, in such case, keep the prisoner at his own house. () The officer to whose custody he was committed on the mittimus may, in such case, keep the prisoner until the jailer can be induced or compelled to receive him. (z) It is to The constable is not to retain the warrant of commitment. be handed over, with the prisoner, to the jailer, as it is the jailer's authority for keeping him. (n) [* 574] that the constable * should get from the jailer, and preserve it; and preserve a copy of the warrant. (a) a But it is recommended receipt for the prisoner, and that he should take If a magistrate, acting within the scope of his authority and jurisdiction, but taking an erroneous view of the effect of the evidence, should come to a wrong conclusion, and commit the defendant, and (t) Davis' J., 114. (u) Id., ib. (v) Id., ib. (x) Dalt. J., ch. 170. 1 Chit. Cr. L., 117. 1T. R., 60. (y) Id., ib. (2) Davis' J., 115. (n) Code Cr. Pro., § 213. (a) 1 Hun & Walsh, 419. 2 Hawk., ch. 16, § 9. (52) G. was brought before a justice, charged with threatening an assault. His examination having extended late into the night, the justice decided that he should give bonds to keep the peace; and G. having refused, the justice, being too ill to make out a warrant for his commitment, then told G. he might go where he had a mind to, that night. G. went home, and the justice, the next morning, issued a warrant of commitment. Held, that the permission given G. to go at large was not a discharge, and the subsequent warrant not illegal. (Gano v. Hall, 42 N. Y., 67.) A commitment is irregular, unless it shows, upon its face, that the justice had determined that there was probable cause to believe the prisoner guilty of the offense charged. (People v. Rhoner, 4 Park., 166.) A magistrate has no authority to commit, for a until the accused has been first brought before him. hearing on a subsequent day, (Pratt v. Hill, 16 Barb., 303.) he should be afterwards discharged by the higher court, on a habeas corpus, yet the magistrate would not, on that account, be liable to an action of damages. (b) But though the warrant of commitment be defective, the court will not discharge the prisoner finally, on that account. (c) The jailer is protected from liability, though he should receive, by mistake of the constable, a person whom it was not intended to confine. (d) Discharge of prisoner.] When a person thus committed by a magistrate is advised that his commitment is illegal, or that he is entitled to be discharged or bailed by a superior jurisdiction, he has a remedy by writ of habeas corpus, or certiorari, and the proceedings thereon. (e) Indeed, whenever a person is restrained of his liberty by being confined in a common jail, or by a private person, whether it be for a civil or criminal cause, and it is apprehended that the imprisonment is illegal, he may in general, by habeas corpus or certiorari, have his body and the proceedings under which he is detained, removed to some superior jurisdiction having authority to examine into the legality of the commitment; and on the return he will be either discharged or remanded. (ƒ) It has been said that where the offense is not set forth with sufficient certainty in the warrant, the party will be entitled to be discharged, if brought up by habeas corpus. And it seems that this holds, not only where no cause at all is expressed in the commitment, but also where it is so loosely set forth that the court can not judge whether it forms a reasonable ground for the imprisonment or not. (g) But when an application is made by a prisoner to be bailed or discharged, it is the practice of the court to look into the complaint and depositions, and not to discharge if these show a sufficient ground for detaining the prisoner, even though the commitment be informal.(h) So, though the word "felony" or "feloniously" be not expressed in the warrant, yet if enough appears from the facts set forth upon the face of the commitment, to show that the offense charged is a felony, the court will deal with the prisoner as on a charge of felony. (¿) But although it is not essential to its validity, where the commitment is for felony, that the words "felony" * or [*575] "feloniously" shall be inserted in it, if it appears from the (b) 14 East, 82. 1 Chit. C. L., 95. (c) 5 Cowen, 50, 58. (d) 1 Chit. Cr. L., 60, 117. Cowp., 479. (e) 3 Black, Com., 131. 1 Chit. Cr. L., 118. 1 Chit. Cr. L., 118. 2 R. S., 568. (g) 1 Nun & Walsh, 408. 2 Hawk., ch. 16, § 16. 2 Inst., 52. (h) Id., 181, 408. 1 Leach, 270. Cald., 295. East, 157. 1 Barn. & Cress., 258. (i) 2 T. R., 255. 1 Leach, 484. 2 Chit. Rep., 138. facts stated therein to be in law a felony, yet it is convenient, if the offense be a felony, so to state it, in order that the officer to whose charge the prisoner is committed to be conveyed to prison, may be made acquainted with the limits and extent of his powers. (k) If a party has been improperly committed, the court will not make it a part of the rule for granting a habeas corpus that he shall not bring an action against the magistrate. (7) At common law, a prisoner may also be discharged upon giving bail. Thus, if he is not ready with bail, at the time he is apprehended and examined, he may at any time be released from imprisonment, on finding sureties. (n) As to discharging a prisoner committed on suspicion of a crime, which afterwards appears clearly not to have been committed, see 2 Hawk. P. C., ch. 16, § 22. (53) 6. Letting offenders to bail. Bail is a delivery of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance at court to answer the charge against him; he being supposed to continue in their friendly custody, instead of going to prison. (54) In most of (k) 1 Nun & Walsh, 409. (1) 3 Car. & Payne, 225. (n) 1 Burr., 460. 2 Hawk., ch. 16, § 1, n. 1. (53) After the accused has entered into a recognizance for his appearance before the sessions, the jurisdiction of the magistrate is at an end. He can not subsequently discharge the defendant. (Sandrock v. Knop, 34 How. Pr., 191.) Where a prisoner, arrested upon a criminal warrant, indorsed, is discharged from arrest, by a justice of the peace of the county in which he is arrested, on entering into a recognizance before him, the warrant has spent itself; and the officer has no right to arrest the prisoner again, without new process. (Doyle v. Russell, 30 Barb., 300.) (54) BAIL-IN WHAT CASES ALLOWED. Admission to bail defined.]-When the defendant is held to appear for examination, bail for such appearance may be taken either 1. By the magistrate who issued the warrant or before whom the same is returnable; or 2. By any judge of the supreme court. (Code Cr. Pro., § 550.) Taking bail defined.—The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. (Id., § 551.) Eighth Amendt. Cons. U. S., art. 1, § 5, N. Y. Const. The power to admit the inferior offenses, bail will answer the same intention as commitment, and therefore it ought to be taken. But in offenses of a capital Offenses not bailable.]—The defendant can not be admitted to bail except by a judge of the supreme court, or by a court of oyer and terminer, where is charged, 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 will be murder. (Id., § 552, as amended in 1882.) If facts do not sustain charge of murder contained in warrant, bail may be allowed. Peo. v Sheriff of Westchester, 1 Park., 659; Peo. v. Porter, 8 Barb., 168; Peo. v Beigler, 3 Park., 316; Peo. v. Baker, 10 How. Pr., 567; see also, Peo. v. Collins, 20 How. Pr., 111. When defendant may be admitted to bail, before conviction.]— 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. (Id., § 553.) When he may be admitted to bail, before conviction.]—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, to return the depositions and statements, upon the defendant being held to answer, after examination. 3. After indictment, either upon the bench warrant issued for his arrest, or upon an order of the court committing him, or enlarging the amount of bail, or upon his being 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. And any captain or sergeant of police in any city or village of this state may take bail for appearance before a competent and accessible magistrate the next morning from any person arrested for a misdemeanor between two o'clock in the afternoon and eight o'clock the next morning, if a magistrate competent to take the bail be not found within an hour after the arrest. When such captain or sergeant of police takes bail he must take it by an undertaking in the form in this section mentioned, executed in his presence by the defendant and at least one surety who must justify under oath and for that purpose the officer may administer the oath. The amount of bail taken by a captain or sergeant of police under this section must be as follows: If the offense be the violation of a corporation ordinance the amount of the bail must be one hundred dollars, except that if a conviction upon the charge would render the defendant liable only for a fine, the amount of the bail must be double the largest fine that could be imposed; if the conviction would render him liable to imprisonment for thirty days or less, the amount of bail must be two hundred dollars. In all other cases the amount of bail must be five hundred dollars. The form of the undertaking must be as follows: 1121 [71] |