§ 211. Defendant to choose how he shall be tried.— If the crime with which the defendant is charged be one triable, as herein before 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.

Peo.

Election when and how made. Peo. v. Lied, 19 Alh. L. J., 400. Waiver of jury trial must appear on face of record. v. Mallon, 39 How. Pr., 454. Waiver cannot be recalled. v. Riley, 5 Park., 401.

Peo.

§ 212. Order for bail, on commitment.—If the crime be bailable and the defendant be admitted to bail, but bail have not been taken, the following words, or words to the same effect, must be added to the indorsement mentioned in section 208, "and that he be admitted to bail in the sum of dollars, and 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 ef the city of New York,"] until he give such bail.”

§ 213. Commitment.-If the magistrate order the defendant to be committed as provided in sections 209 and 212, 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.

§ 214. Form.-The commitment must be to the following effect:

66

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 may be.]

It may be amended. Ex parte Hogan, 55 How. Pr., 458.

§ 215. Undertaking of witnesses to appear.-On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people, a written undertaking, to the effect that he will appear and testify at the court to which the depositions and statement are to be sent, or that he will forfeit the sum of one hundred dollars.

§ 216. Security for appearance of witnesses.—When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness is an accomplice in the commission of the crime charged, he may order the witness to enter into a written undertaking, with such sureties, and in such sum as he may deem proper, for his appearance as specified in the last section. [Am'd ch. 416 of 1883.]

1 Park. Cr., 567; 3 1d., 465; 5 Bar., 514.

§ 217. [Repealed ch. 416 of 1883.]

§ 218. Witness to be committed on refusal.-If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the magistrate must commit him to prison until he comply or be legally discharged.

§ 219. Witness unable to give security, may be conditionally examined.-A witness may be conditionally examined, on behalf of the people, in the manner and with the effect provided in this Code. [Am'd ch. 416 of 1883.] See §§ 620-635, post.

§ 220. [Repealed ch. 416 of 1883.]

§ 221.-Magistrate to return depositions, etc.-When a magistrate has discharged a defendant, or has held him to answer, as provided in sections 207 and 208, 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 depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by him.

TITLE IV.

Of Proceedings after Commitment, and before Indict

ment.

CHAPTER I. Preliminary provisions.

II. Formation of the grand jury; its powers and duties.

CHAPTER I.

PELIMINARY PROVISIONS.

SEC. 222. Crimes; how prosecuted.

§ 222. Crimes; how prosecuted.-All crimes prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment.

CHAPTER II.

FORMATION OF THE GRAND JURY, ITS POWERS AND DUTIES.

SEC. 223, 224. Grand jury defined.

225, 226, 227. For what courts to be drawn; the order.
228. Misdescription in order.

229. Mode of selecting grand jurors.

230. If sixteen grand jurors do not appear, additional number to be ordered.

231, 232, 233. Manner of designating the additional grand jurors.

234. Summoning the additional grand jurors, and compelling their attendance.

235. When new grand jury may be summoned for the

same court.

236. Grand jury, how drawn when more than a sufficient number attends.

237. Who may challenge an individual grand juror.

238. Causes of discharge of the panel.

239. Causes of challenge to an individual grand juror.
240. Manner of taking and trying the challenges.

241. Decision upon the challenge.

242. Effect of allowing a challenge to an individual grand

juror.

243. Violation of last section.

244. Appointment of foreman.

245, 246, 247. Oath of the foreman and the other grand

jurors.

248. Charge of the court.

249. Retirement of the grand jury.

250. Appointment of a clerk, and his duties.

251. Discharge of the grand jury.

252. Power of grand jury to inquire into crimes, etc.

253. Foreman may administer oaths.

254. Definition of an indictment.

255. Evidence receivable before the grand jury.

256. Same.

257. Grand jury not bound to hear evidence for the defendant, but may order explanatory evidence to be produced.

258. Degree of evidence, to warrant an indictment.

259. Grand jurors mnst declare their knowledge as to commission of a crime.

260. Grand jury must inquire as to persons imprisoned on criminal charges and not indicted; the condition of public prisons; and the misconduct of public officers.

261. Grand jury entitled to access to public prisons, and to
examine public records.

262, 263, 264. When and from whom they may ask advice,
and who may be present during their sessions.
265. Secrets of the grand jury to be kept.

266. Grand jury, when bound to disclose the testimony of
a witness.

267. Grand juror not to be questioned for his conduct as such.

§ 223. Grand jury defined.—A grand jury is a body of men, returned at stated periods from the citizens of the county, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county.

§ 224. Id. The grand jury must consist of not less than sixteen and not more than twenty-three persons, and the presence of at least sixteen is necessary for the transaction of any business.

Peo. v. King, 2 Cai., 98.

§ 225. For what courts to be drawn.-A grand jury must be drawn for every term of the following courts: 1. The court of oyer and terminer, except in the city and county of New York, and the county of Kings, and except for extraordinary or adjourned terms.

2. The court of general sessions of the city and county of New York and the court of sessions of the county of Kings; and

3. The city courts whenever an indictment can be there found.

226. Id.-A grand jury may also be drawn:

1. For every other court of sessions, when specially ordered by the court, or by the board of supervisors. 2. For the court of oyer and terminer in the city and county of New York, upon the order of a judge of the supreme court elected in the first judicial district.

3. For the court of oyer and terminer, of the county of Kings, upon the order of a judge of the supreme court elected in the second judicial district.

§ 227. Order how filed.-If made by the court or a judge thereof, the order for a grand jury must be entered upon its minutes, and a copy thereof filed with the county clerk, at least twenty days before the term for which the jury is ordered. If made by the board of supervisors a copy thereof, certified by the clerk of the board, must be filed with the county clerk, at least twenty days before the term; and when so filed, is conclusive evidence of the authority for drawing the jury.

◊ 228. Misdescription.—A misdescription of the title of the court in an order for a grand jury does not affect the validity of the order, if it can be plainly understood therefrom what court is intended.