§ 19. RECOGNIZING PROSECUTOR AND WITNESSES TO APPEAR.

If upon the conclusion of the examination before the magistrate it shall appear that an offence has been committed, and there is probable cause to believe the prisoner to be guilty thereof, the magistrate shall bind by recognizance the prosecutor and all the material witnesses against the prisoner, to appear and testify at the next court having cognizance of the offence, and in which the prisoner may be indicted.1

And whenever such magistrate shall be satisfied, by due proof, that there is good reason to believe that any such witness will not fulfill the conditions of such recognizance unless security be required, he may order such witnesses to enter into a recognizance, with such sureties as he shall deem meet, for his appearance at such court; so also Indians and married women being material witnesses may in like manner be required to procure sureties for their appearance at such court.2

If any witness so required to enter into a recognizance, either with or without sureties, shall refuse to comply with such order, it is the duty of the magistrate to commit him to prison until he shall comply with such order or be otherwise discharged according to law.3

The recognizance is an obligation of record entered into before a magistrate duly authorized for that purpose, with a condition to appear at some court named therein, and it should contain an acknowledgment of indebtedness to the people, and mention the offence charged.*

A recognizance, taken by a justice of the peace for the appearance of the accused to answer a criminal charge, must require his attendance at the next criminal court having cognizance of the offence.

Thus, where the recognizance was conditioned for the appearance of the accused to answer a criminal charge at the next court of oyer and terminer to be held in the county in June then next, and it appeared that a court of sessions was appointed to be held and was in fact held in the same county in May of the same year, at which a grand jury was required to and did attend, and was

2 R. S., 709, § 21.

2 R. S., 709, §§ 23, 24.

• Id. § 25.

3 Binn., 431; 6 Hill, 506.

sworn and heard complaints, such court of sessions having cognizance of the offence charged, the recognizance was held void.1

Where the accused has waived an examination, the recognizance need not show on its face that there is probable cause for believing the accused guilty of the offence charged, or that the magistrate has made any adjudication in the matter.2

The recognizance may be either to appear and answer the particular charge set forth, or to appear and answer what shall be objected against the party.3

§ 20. WHEN PRISONER TO BE COMMITTED TO PRISON OR LET TO BAIL. In case it shall appear from the examination that an offence has been committed, and that there is probable cause to believe the prisoner guilty thereof, the magistrate is either to commit the accused to prison or let him to bail.

The provision of the statute is as follows: If the offence with which the prisoner be charged be bailable by a justice of the peace or an alderman of a city, and the prisoner offer sufficient bail, such bail may be taken and the prisoner discharged. If no bail be offered, or the offence be not bailable by a justice or an alderman, the prisoner shall be committed to prison.1

A justice of the peace or an alderman of a city has power to let to bail, in all cases of misdemeanor, and in all cases of felony where the imprisonment in the State prison cannot exceed five years, before indictment found.5

At this stage of the proceedings, the magistrate having decided not to discharge the defendant, one of two things happens; he is either sent to prison, where he remains until the next session of the grand jury, or he is released upon bail to answer such indictment as the grand jury may find against him. In case the accused should be able to furnish sufficient and satisfactory bail for his appearance at the next court having cognizance of the offence, but the committing magistrate has not power to let him to bail, he should at once make application to an officer authoized to let him to bail and secure his release from confinement.

1

1 Peo. v. Mack, 1 Park., 567; Vide Peo. v. Millis, 5 Barb., 511.

' Champlain v. The Peo., 2 N. Y. (2 Com.), 82,

' Peo. v. Keober, 7 Hill, 39.

Upon making a verbal application to such officer, it is usually the practice for the judge, before whom the application is pending, to send a written order to the sheriff, requesting him to bring the prisoner up to be bailed. In case the judge or court to whom such application is made should decline to make such order, or the sheriff or jailor refuse to execute it, the course to be pursued by the defendant is to make an application for a writ of habeas corpus, to be brought up and let to bail by some officer having authority to take bail.

It is usually the practice on such occasions, in case the charge is of a serious nature, or the accused a notorious offender, for the officer by whom the bail is taken to notify the district attorney of the time and place at which the bail is to be taken, in order that he may be present and see that the amount of the bail is sufficient, and examine the sureties in regard to their responsibility.

§ 21. OF THE COMMITMENT OF THE ACCUSED TO PRISON.

Though the warrant of commitment be defective, the court, upon the return of a writ of habeas corpus, will not discharge the prisoner finally for that reason; but if a crime be made out upon the deposition, the course is to discharge pro forma, but remand under a special rule.1 The warrant of commitment or mittimus, as it is commonly called, should possess the following requisites: It should describe the prisoner by his name, if known, and if not known, then it may be sufficient to describe the person by his age, stature, complexion, color of hair and the like, and to add that he refuses to tell his name. It may be in the name of the people or that of the justice awarding it, but the latter is the most usual. The statute is silent in respect to whether the mittimus should have a seal or not. At the common law it is necessary that it should be in writing, under the hand and seal of the magistrate, and show the time and place of making it.* The term warrant imples a seal, except in cases where a seal has been dispensed with.5

4

2

Ex parte, Taylor, 5 Cow., 39. Contains form of rule.

1 Hale, 577; Burns J., Commit.

. 1 Chit. Cr. L., 109; 2 Hawk. P. C., 16, § 14.

1 Chit. Cr. L., 109; 2 Hawk., ch. 16, § 13; 2 Hale, 122. Smith v. Randall, 3 Hill, 495.

It should be directed to the sheriff or any constable, and to the jailor and keeper of the prison, and be generally to carry the party to prison; and 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.' It should also set forth the particular species of crime alleged against the party, with convenient certainty. It ought also to state that the party has been charged upon oath.3 So it should point out the place of imprisonment, and not merely direct that the party should be taken to prison. A warrant of commitment is irregular if it do not state that the magistrate has determined that there was probable cause for believing the prisoner to be guilty of the offence charged against him.5

The statute simply requires that the defendant should be committed to prison. Where there is but one common jail in the county, that is the prison in which the accused should be detained. Where there are more than one jail in a county, used for the confinement of criminals, as in the city of New York and half shire counties, the mittimus should direct to which of them the defendant is to be committed."

The conclusion of the mittimus by common law was " until he should be discharged by due course of law;"" although it is said to be proper, when the accused is committed for want of sureties in a bailable offence, to direct the jailor to keep the prisoner in his said custody for want of sureties, or until he shall be discharged by due course of law.8

Upon the delivery of the prisoner to the keeper of the jail, the officer should have with him his mittimus, as an authority for detaining him, whereupon the sheriff or keeper of the jail delivers to the officer his receipt for the prisoner, which is commonly called a jail receipt. If the jailor refuses to receive the prisoner,

1

1 2 Strange, 934; 1 Ld. Raym., 424; 2 Hawk., ch. 16, § 13; Burns J., Commit. * 1 Hale, 684; 2 Hawk., ch. 16, § 16; 2 Hale, 122; 11 St. Tr., 304–318; 14 East. Rep., 70; 3 Cranch, 448.

it is said the officer may in such case detain the prisoner in his own house.1

In case the prisoner either cannot or does not wish to give bail, if he is advised that the commitment is illegal, his proper remedy is by writ of habeas corpus. It has been held that in a commitment before indictment the whole question of guilt or innocence is open for examination on the return of the writ of habeas corpus, and the inquiry is not necessarily confined to the examination of the original depositions. In such cases, under our Revised Statutes, the proceedings on a habeas corpus are in the nature of an appeal from the decision of the committing magistrate. And it is further said that on return to a writ of habeas corpus, issued to inquire into the cause of detention after commitment by a magistrate, and before indictment, additional proof may be received by the judge for the purpose of enabling him to decide upon the legality of the detention.3

§ 22. OF THE OFFICERS AND COURTS AUTHORIZED TO LET TO BAIL

BEFORE INDICTMENT FOUND.

The court of oyer and terminer, held in any county, has power to let to bail any person committed before indictment found upon any charge whatever.

The court of sessions of any county, has power to let to bail persons, committed to the prison of such county, before indictment found for any offence triable in such court.

The officers, before whom persons charged with crime shall be brought, have power to bail as follows before indictment found.4 1. A justice of the supreme court, in all cases.

2. A judge of the county courts, in all cases triable in a court of sessions.

3. A justice of the peace or alderman of a city, and in the city of New York a special justice or an assistant justice, in all cases of misdemeanor, and in all cases of felony where the imprisonment in a State prison cannot exceed five years.

4. The police justices in the city of New York, in all cases