with an intent to steal the goods of one person, is no bar to an indictment for the same breaking and entering with an intent to steal the goods of another person.15 45 Robbery. Where accused robbed two persons by pointing a pistol at each a prosecution for one of such robberies does not prevent a subsequent prosecution for the other.46 Slander. An acquittal of a charge of slandering a person in the presence of other persons is not a bar to a charge of slandering another on the same occasion, in the presence of the same persons, where the language set up in the two indictments is entirely different.47 Libel. It has been held that a conviction for libel based on a complaint of one of the persons concerning whom the libel was published is a bar to a subsequent prosecution based on the same publication instituted on the complaint of another person concerning whom the libel was published.48 A conviction for the sale of intoxicating liquors to one person is no bar to a prosecution for a sale to another, although they transpired at the same time.50 49 Conviction of sending a threatening letter to a person is no bar to a prosecution for sending a similar letter to another person.51 Receiving deposits in insolvent bank. The conviction or acquittal of a bank officer for receiving a deposit while the bank was insolvent is not a bar to a prosecution for receiving one thereafter from a different individual, since each would be a separate and distinct offense.52 False pretenses. A prosecution for obtaining by false pretenses money from a specified person does not bar a subsequent prosecution for obtaining by false pretenses a note from another person.5 Threats made for the purpose of extorting money. A conviction of threatening to accuse a certain per 53 45. Com. v. Hope, 22 Pick. (Mass.) | 8 SE 470. 1; Kinney v. State, 67 Tex. Cr. 175, 148 SW 783. 46. Keeton v. Com., 92 Ky. 522, 18 SW 359, 13 KyL 748. 47. Collins v. State, 39 Tex. Cr. 30, 44 SW 846. 48. Com. v. Jeftich, 22 Pa. Dist. 959, 40 Pa. Co. 220. 49. State v. Ainsworth, 11 Vt. 91. 50. Harris v. State, 50 Tex. Cr. 411, 97 SW 704; Benson v. State, (Tex. Cr.) 44 SW 168. 51. Dunn v. State, 43 Tex, Cr. 25, 63 SW 571. son of an offense for the purpose of extorting money is not a bar to a subsequent prosecution for making threats to accuse another person of the same offense for the purpose of extorting money, although both transactions resulted from a single conspiracy on the part of defendant.54 [488] Q. Jeopardy of Joint Defendants. Where two or more are jointly indicted but separately tried, the first trial does not constitute a former jeopardy as to defendants subsequently tried, and the acquittal of one cannot be pleaded by the other as a bar at his subsequent trial.55 So a judgment acquitting several defendants, charged with committing an offense jointly will not bar prosecution against each one charged with part of the same offense separately committed by him.56 But in crimes where there is a mutual dependence of the guilt of each defendant upon that of the other, the acquittal of one defendant may be pleaded in bar to the subsequent trial of the other,57 and where, two persons are jointly indicted and tried for conspiracy, the acquittal of one operates as an acquittal of both 58 and will bar a subsequent prosecution of either defendant.59 And it has been held that, where two are jointly indicted for committing the same offense at the same time, and one is proved to have committed it at a different time, a nolle prosequi cannot be entered as to him against the objection of the other, as each has been in legal jeopardy and is entitled to an acquittal.60 [a] Illustrations.-(1) One prosecuted for adultery (State v. Simpson, 133 N. C. 676, 45 SE 567; Solomon v. State, 39 Tex. Cr. 140, 45 SW 706; Alonzo v. State, 15 Tex. A. 378, 49 AmR 207), (2) or for fornication (State v. Caldwell, 8 Baxt. (Tenn.) 576; Ledbetter v. State, 21 Tex. A. 344, 17 SW 427) cannot plead in bar the former acquittal of his codefendant. (3) So the acquittal of one jointly charged with a physician of murder by abortion is not a bar to a prosecution of the physician, although the abortion was committed pursuant to a conspiracy between them. State v. Crofford, 133 Iowa 478, 481, 110 NW 921 (where, however, it was said: "Had the charge been conspiracy, there would have been much force in this contention, for a combination of two or more is essential to the commission of that offense, and it necessarily follows that, if one only of two charged Iowa.-State v. Crofford, 133 Iowa therewith is found not guilty, the 478, 110 NW 921; State v. Lee, 91 other must be innocent, for one Iowa 499, 60 NW 119; State v. Mc-alone could not have committed the Clintock, 1 Greene 392. 52. State v. Burlingame, 146 Mo. 207, 48 SW 72; Com. v. Hazlett, 16 Pa, Super. 534; Com. v. Hazlett, 14 Pa. Super. 352: Com. v. Rockafellow, 3 Pa. Super. 588. 53. State v. Gibson, 170 N. C. 697, 86 SE 774. 54. Wallace v. State, 41 Fla. 547, 26 S 713. 55. Ga.-Dumas v. State, 62 Ga. 58. Mo.-State v. Ellis, 74 Mo. 385, 41 AmR 321; State v. Orr, 64 Mo. 339. Oh.-Studer v. State, 29 Oh. Cir. Ct. 33 [aff 74 Oh. St. 519 mem, 78 NE 1139 mem]. Or-State v. Branton, 33 Or. 533, 56 P 267. 576. particular offense"). [b] Trial of plea of former jeop- Tenn.-State v. Caldwell, 8 Baxt. Va.-Williams v. Com., 85 Va. 607, murder in the second degree will Lee, 91 Iowa 499, 60 NW 119. 56. Com. V. McChord, 2 Dana (Ky.) 242. 57. Baumer v. State, 49 Ind. 544, 19 AmR 691; Delany v. Peo., 10 Mich. 241. [a] Illustrations.-(1) In a prosecution for incest under a statute which makes it essential to the existence of the crime that both parties shall have knowledge of the relationship existing between them, it has been held that the acquittal of one may be pleaded in bar to a prosecution against the other. Baumer v. State, 49 Ind. 544, 19 AmR 691. (2) A prosecution against a husband for raping his wife by procuring or assisting another to have sexual intercourse with her will not lie where the latter, indicted jointly with the husband, has been tried separately and acquitted. State v. Haines, 51 La. Ann. 731, 25 S 372, 44 LRA 837. 58. See Conspiracy $ 245. 59. State v. Smith, 117 Ark. 384, 175 SW 392. 60. McGehee v. State, 58 Ala. 360. 61. Cross references: By motion, demurrer, or plea in By nolle prosequi or discontinuance 62. Peo. v. Stoll, 143 Cal. 689, 77 P 818; Blocher v. State, 177 Ind. 356, 98 NE 118; State v. White, 71 Kan. 356, 80 P 589, 6 AnnCas 132. 63. State v. White, 71 Kan. 356, 80 P 589, 6 AnnCas 132. 64 rendered against him, is not entitled on a subsequent indictment for the same offense to urge the defense of former jeopardy. The question of former jeopThe question of former jeopardy may be raised, where the facts upon which such plea is based appear of record in the same case, by a plea in bar,65 or by a motion for discharge of defendant, or by objecting to entering upon the second trial, upon such ground,67 or in any other appropriate manner by which the matter is called to the attention of the trial court.68 But such question must be raised at the first opportunity;69 and X. PRELIMINARY COMPLAINT, AFFIDAVIT, if a person about to be placed in jeopardy a second time does not, in some legal form, insist upon his constitutional privilege before entering upon a trial of the merits, the privilege is waived.70 The objection comes too late when taken for the first time on a motion for a new trial,71 or in arrest of judgment.72 Where a plea of former acquittal is filed, but defendant goes to trial on the case in chief without further invoking any action of the court in reference thereto, such plea is properly treated as abandoned.73 WARRANT, EXAMINATION, COMMITMENT, AND SUMMARY OR OTHER TRIAL WITHOUT JURY [§ 491] A. Preliminary Proceedings in General-1. Modes of Instituting Prosecution-a. In General. Broadly speaking, there are four modes by which an offender may be brought to justice: The accuser may give information to the public prosecuting officer which will result in an indictment being prepared and sent to the grand jury; or he may file a written complaint on oath before the examining magistrate and obtain a warrant of arrest, followed by a preliminary examination and the binding over of accused; or the grand jury may act upon their own knowledge that a crime has been committed, or upon information from others, and make a presentment against the offender; or the 64. Peo. v. Higgins, 59 Cal. 357; State v. Dry, 152 N. Č. 813, 816, 67 SE 1000 [quot Cyc]. [a] Where the presence of accused during the entire trial is essential to a valid judgment against him and he voluntarily absents himself and the jury is discharged, he is not entitled to this defense. Peo. v. Higgins, 59 Cal. 357; State v. Dry, 152 N. C. 813, 67 SE 1000. 65. Terr. v. Lobato, 17 N. M. 666, 134 P 222, LRA1917A 1226. [a] Where the facts are all before the court as a part of its own record of the case and the objection of former jeopardy raises only a question of law, the right to immunity from a subsequent prosecution will not be considered as waived where defendant on the reading of the information to the jury and before the taking of any testimony interposes a plea of former acquittal. Jackson v. State, 11 Okl. Cr. 523, 14 P 1058. 66. Com. v. Daniel, 9 Ky. Op. 96; Terr. v. Lobato, 17 N. M. 666, 134 P 222, LRA1917A 1226. 67. Terr. v. Lobato, 17 N. M. 666, 134 P 222, LRA1917A 1226. 68. Terr. v. Lobato, 17 N. M. 666, 134 P 222, LRA1917A 1226. 69. Terr. v. Lobato, 17 N. M. 666, 134 P 222, LRA1917A 1226. 70. State v. White, 71 Kan. 356, 80 P 589, 6 AnnCas 132; Gue v. Eugene, 53 Or. 282, 100 P 254. 71. State v. Houghton, 45 Or. 110, 75 P 887. 72. Peo. v. McGinnis, 234 Ill. 68, 84 NE 687, 123 AmSR 73; Dalton v. Peo., 224 Ill. 333, 79 NE 669. 73. Norwood v. State, 3 Ga. A. 325, 59 SE 828. prosecuting attorney may file an information." By statute minor offenses may be prosecuted summarily on complaint before a magistrate.75 [§ 492] b. Nature and Definition of "Complaint." The term "complaint" is a technical one, descriptive of proceedings before magistrates.76 It is the preliminary charge or accusation against an offender, made by a private person or an informer to a justice of the peace or other proper officer, charging that accused has violated the law." It is the foundation of the jurisdiction of the magistrate.78 The term is used with reference to accusations not made by the grand jury or the state's attorney.79 Nevertheless it performs the same office that an in 79. Goddard V. State, 12 Conn. 448, 453. Indictment, presentment, and in- 541. [a] In California (1) under Pen. [a] "Information," "presentment" and "indictment" distinguished.(1) A complaint differs from an information, which is the prosecution of an offender by the attorney or solicitor-general, and from a presentment or indictment, which is the accusation of the grand jury. Webster D. [quot Goddard v. State, 12 Conn. 448, 453]. (2) The paper called a "complaint" in the justice's court serves the same purpose as the paper called an "information" in the district court, and those two words are often used synonymously and mean the same thing. An information or a complaint is a paper charging a defendant with a particular offense, and it matters not whether it is called an information or a complaint. State V. Stafford, 26 Ida. 381, 143 P 528, 530. (3) It has been held that the statutory direction to the magistrate to hear the allegations of "complainant" and the evidence of "his" witnesses does not apply where an "information" is laid as distinguished from the making of a "complaint," as where the charge is prosecuted by the crown for a crime against public order, in which [b] In Massachusetts the word case the informant himself is mere"complaint" as used in the statutes ly a crown witness and the other in reference to criminal offenses crown witnesses cannot be said to sometimes means the formal, written charge of crime to which the accused person is to answer, and sometimes it means the oral charge which may be made to a proper magistrate or court, and which is to be reduced to writing by the magistrate or court. Hobbs v. Hill, 157 Mass. 556, 32 NE 862. Pen. Code § 872, prior to its amendment in 1905, it was provided that if it appeared from the examination of accused that a public offense had been committed, and there was sufficient cause to believe him guilty thereof, the magistrate must indorse on the deposition an order for his commitment, etc., the word "deposition" was synonymous with "complaint," and was changed to "complaint" by the amendment. Peo. v. Lapique, 10 Cal. A. 669, 103 P 164. be "his" witnesses. Rex v. Mercier, (Que.) 18 CanCrCas 363. See Peo. V. Ayhens, 85 Cal. 86, 24 P 635 (dis tinguishing between complaint and information); Com. V. New York Cent., etc., R. Co., 206 Mass. 417, 92 NE 766, 19 AnnCas 529 (distinguishing between complaint and indictment). See generally Indictments and Informations [22 Cyc 173]. 74. U. S. v. Kirkpatrick, 16 Fed. 765; Goddard v. State, 12 Conn. 448, 453 (where it was said: "In England there are four modes of prosecution at the suit of the king, says V. Curtis, 142 App. Div. 155, 127 [b] As equivalent to "relation."— 77. Webster D. [quot Goddard v. State, 12 Conn. 448, 453]; Shappee NYS 33. [a] In India Code Cr. Proc. (1882) § 4 "complaint" is defined to mean the allegation made orally or in writing to a magistrate with a view to his taking action. In re Surendranth Banerjea, L. R. 10 Indian App. 171, 178. Blackstone; by presentment, indict- In construing a statute providing State v. dictment or information does in superior courts.80 It has been defined as an accusation or charge against an offender, made by a private person or an informer, to a justice of the peace or other proper officer, alleging that the offender has violated the law; a preliminary charge before a committing magistrate; 82 a formal allegation or charge, preferred by some one against another, to an appropriate court or officer;83 the allegation in writing, made to a court or magistrate, that a person has been guilty of some designated offense; 84 sometimes the oral charge which may be made to a proper magistrate or court, and which is to be reduced to writing by the magistrate or court;85 a form of legal process which consists of a formal allegation or charge against a party, made or presented to the appropriate court or officer, as for a wrong done or a crime committed, in the latter case generally under oath,88 the name of a pleading filed by any person other than the public prosecutor, by which a criminal action is instituted in a justice's or a probate court,s or on which a criminal prosecution may be based in the district court; 88 a paper charging a defendant with a particular offense; the taking of some legal proceeding, as laying an information or preferring an indictment.90 89 87 80. Peo. v. Pillion, 78 Hun 74, 29 NYS 267; Peo. v. Olmsted, 74 Hun 232, 26 NYS 818. 81. Webster D. [quot Goddard v. State, 12 Conn. 448, 453]. [a] Similar definition."A charge, preferred before a magistrate having jurisdiction, that a person named (or an unknown person) has committed a specified offense, with an offer to prove the fact, to the end that a prosecution may be instituted." Black L. D. [cit U. S. v. Collins, 79 Fed. 65; Hobbs v. Hill, 157 Mass. 556, 32 NE 862; Com. v. Davis, 11 Pick. (Mass.) 432; State v. Dodge Co., 20 Nebr. 595, 31 NW 117]; Richland v. Null, (Mo.) 185 SW 250, 251 [quot Cyc]. [b] "Preliminary affidavit" distinguished.-Under Pen. Code §§ 811, $12, providing for the verification of facts by complainant prior to the issuance of a warrant of arrest by a magistrate, it has been held that the instrument on which the warrant is authorized is not a "complaint" in the sense of a pleading, but is more like a deposition only, stating the facts verified by the informant. Peo. v. Sacramento Butchers' Protective Assoc., 12 Cal. A. 471, 107 P 712. [c] "Deposition" synonymous.— The word "complaint" as used in a statute amending Pen. Code § 872, providing that if it appeared from the examination of accused that a public offense had been committed, and there was cause to believe him guilty thereof, the magistrate should indorse on the deposition an order for his commitment, etc., is synonymous with "deposition" as used in the code prior to its amendment. Peo. v. Lapique, 10 Cal. A. 669, 103 P 164. 94 complaints in criminal cases.92 An act which provides for an entry by the clerk on the record of the statement of the offense of which accused is charged, which shall stand as a complaint, does not deprive accused of his constitutional right to be informed of the nature and cause of the accusation.93 The fact that the information filed by the prosecuting attorney is not verified by him, or that it is verified by him on information and belief,95 does not violate the constitutional provision that no warrant shall issue except on probable cause supported by oath, if with the information a complaint verified by some credible person is also filed. A statute providing that the clerk may receive complaints, administer oaths, and issue warrants, being construed to require that the clerk when he issues a warrant on a complaint to the court should issue it as the warrant of the court and not as his own warrant, is constitutional.96 [§ 494] b. Right of Accused to Confront Witnesses and to Have Counsel. The constitutional right of accused to be confronted by the witnesses against him and to be represented by counsel has reference to the trial only, and is not infringed by preliminary proceedings. Nor will the absence of a preliminary examination be an infringement of his right to confront the witnesses.98 97 [§ 495] B. Preliminary Complaint or Affidavit 982-1. Necessity for. While it has been held that a statutory provision requiring an information in writing and under oath is not imperative in a case in 83. State v. Stout, 71 Iowa 343, 344, 32 NW 372. 84. Cal. Pen. Code (1903) § 806 [quot U. S. v. Collins, 79 Fed. 65, 66]. [a] Similar definitions.-(1) "The allegation in writing, made to a magistrate, that a person has been guilty of some designated offense." Rev. Codes 7509 [quot State v. Stafford, 26 Ida. 381, 388, 143 P 528]. (2) "The formal written charge of crime to which the accused person is to answer." Hobbs v. Hill, 157 Mass. 556, 557, 32 NE 862. [b] It imports a charge in clear and distinct form of a writing. State v. Goetz, 65 Kan. 125, 69 P 187. 85. Hobbs v. Hill, 157 Mass. 556, 557, 32 NE 862. To same effect Horgan v. Boston El. R. Co., 208 Mass. 287, 94 NE 386. 86. Webster D. [quot State v. Dodge County, 20 Nebr. 595, 600, 31 NW 117]; Richland v. Null, (Mo. A.) 185 SW 250, 251 [quot Cyc]. 87. State v. Stafford, 26 Ida. 381, 388. 143 P 528 (where the court said: "The same pleading is called [an] 'information' when the pleading is filed by the public prosecutor"). 88. State v. Stafford, 26 Ida. 381, 388, 143 P 528. 89. State v. Stafford, 26 Ida. 381, 388, 143 P 528. 90. Patterson v. Brown, 11 Man. 612, 615. 91. Sunderlin v. Ionia County, 119 Mich. 535, 538, 78 NW 651 (holding that the legislature has power to prescribe conditions to be fulfilled before the issuing of a warrant under a constitutional provision that justices of the peace "shall also have such criminal jurisdiction and perform such duties as shall be prescribed by the legislature' "); In re Criminal Code, 43 Can. S. C. 434. 74 [d] "Explanation" distinguished. -It has been held that a statement 92. State v. McCaffrey, 69 Vt. 85, made by prosecutrix in a rape case 37 A 234 (form of complaint). four months after the alleged as- 93. State V. Messolongitis, sault, and not voluntarily, but in Minn. 165, 77 NW 29. response to a demand for explana- 94. Noble v. Peo., 23 Colo. 9, 45 tion of her condition, is not a com- P 376; Holt v. Peo., 23 Colo. 1, 45 plaint but a mere explanation. State P 374; Ratcliff v. Peo., 22 Colo. 75, V. Bebb, 125 Iowa 494, 101 NW 43 P 553; Terr. v. Cutinola, 4 N. M. 189, 190. 160, 14 P 809. 82. Gardner v. Peo., 62 N. Y. 299, 306. 95. Brown v. Peo., 20 Colo. 161, 36 P 1040; Washburn v. Peo., 10 Mich. 372; In re Boulter, 5 Wyo. 329, 40 P 520. See also Indictments and Informations [22 Cyc 281]. 96. Com. V. Posson, 182 Mass. 339, 65 NE 381. 97. In re Bates, 2 F. Cas. No. 1,099a; U. S. v. Grant, 18 Philippine 122; Kemper v. State, 63 Tex. Cr. 1, 138 SW 1025. See also infra §§ 576, 579. 98. Goldsby v. U. S., 160 U. S. 70, 16 SCt 216, 40 L. ed. 343. 982. Affidavit or complaint: As basis for charge of perjury see Perjury [30 Cyc 1407]. As evidence on trial see infra § 1204. Authentication in extradition proceedings see Extradition [19 Cyc 70, 91]. Commencement of prosecution by as affecting limitations see supra § 355. Competency of wife or husband to make affidavit see Adultery §§ 21, 22. Defects as ground for new trial see infra § 2624. In proceedings or prosecutions for: Bastardy see Bastards §§ 83, 84. Deportation of Chinese see Aliens § 104. Illegal sale of liquors see Intoxicating Liquors [23 Cyc 214]. Seizure of liquors see Intoxicating Liquors [23 Cyc 293 et seq]. Trespass see Trespass [38 Cyc 1184]. Insufficiency as ground for: Arrest of judgment see infra § 2771. Setting aside indictment or infor mation see Indictments and Informations [22 Cyc 418]. Liability for false imprisonment of person making see False Imprisonment [19 Cyc 329 et seq]. Materiality as affecting liability for perjury see Perjury [30 Cyc 1417, 1420]. On summary trial see infra §§ 642649. Sufficiency to sustain information see Indictments and Informations [22 Cyc 268]. which accused himself furnishes the information to the magistrate and a summons is issued,99 as a general rule, in most jurisdictions by express constitutional or statutory provision, a justice of the peace or other examining magistrate has no authority to hold a preliminary examination and to issue a warrant unless upon complaint or affidavit, verified by oath, showing that an offense has been committed and that probable cause exists to believe that accused committed that crime.1 Although where one is arrested and brought before a magistrate without a warrant, nothing further is required to give him jurisdiction, since, being already in custody, there To procure: Continued: Variance between: Indictment or information and preliminary complaint see Indictments and Informations [22 Cyc 193, 263 et seq]. Warrant and complaint see infra §§ 542, 551. 99. is no reason to issue a warrant for his apprehension, yet a written complaint or information against defendant setting out his offense is generally just as necessary in such a case as in any other.2 It is sufficient if the information is filed when defendant is first brought before the justice. It has been held that the fact that an arrest was not based on an affidavit does not render void the judgment on the trial of accused.* The district attorney or other prosecuting officer may, on his own motion, present an indictment to the grand jury without the presentation of an affidavit charging the offense. The complaint need not be in writing, unless required by statute, foundation for a prosecution to conSearcnes and Seizures [35 Cyc viction, upon the affidavit, or state1266]. ment of complaint by the solicitor. We find no warrant in the law of this State for putting a party upon trial upon the mere statement of the solicitor, unsupported by a sufficient complaint under oath, and warrant of arrest. The judgment of the court, sustaining the demurrer to the affidavit, judicially determined that it charged no offense. With this judgment in force, declaring that the affidavit charged no offense, the defendant was entitled to be discharged." Miles v. State, 94 Ala. 106, 107, 11 S 403. In re Thompson, 14 B. C. 314, 11 WestLR 517. 1. U. S.-U. S. V. Burr, 25 F. Cas. No. 14,692, Brunn. Coll. Cas. 493. Ala.-Arzumanian v. Birmingham, 165 Ala. 374, 51 S 645. Ariz.-Fertig v. State, 14 Ariz. 540, 133 P 99. Cal.-Ex p. Winston, 160 Cal. 18, 116 P 390. Ga. Flanders v. State, 9 Ga. A. 820, 72 SE 286. Il-Housh v. Peo., 75 Ill. 487; Rafferty v. Peo., 69 Ill. 111, 18 AmR 601; Myers v. Peo., 67 Ill. 503. Ind. Smith V. Clausmeier, 136 Ind. 105, 35 NE 904, 43 AmSR 311. Kan.-State v. Goetz, 65 Kan. 125, 69 P 187 (construing Gen. St. [1901] § 5807). Ky. Clark v. Hampton, 163 Ky. Mich.-Peo. v. McLean, 68 Mich. 480, 36 NW 231; Peo. v. Lynch, 29 Mich. 274. Minn.-State V. Bates, 96 Minn. 150, 104 NW 890. Miss.-Taylor v. State, 101 Miss. 857, 58 S 593; Woodson v. State, 94 Miss. 370, 48 S 295; Hall v. State, 91 Miss. 216, 44 S 826: Wilcox v. Williamson, 61 Miss. 310. Nebr.-White V. State, 28 Nebr. 341, 44 NW 443. N. Y.-Peo. v. Hicks, 15 Barb. 153. N. C.-Welch v. Scott, 27 N. C. 72. Oh.-Eichenlaub v. State, 36 Oh. St. 140. Okl.-De Graff V. State, 2 Okl. Cr. 519, 103 P 538. Or.-State v. Williams, 45 Or. 314, 77 P 965, 67 LRA 166. Pa.-Conner v. Com., 3 Binn. 38; Kessler v. Hoffman, 9 Pa. Dist. 365; Com. v. Hunter,. 13 Pa. Co. 573; Gelbert v. Com., 3 LackJur 374; Matter of Memorial Citizens' Assoc., 8 Phila. 478. Tex.-Ross v. State, (Cr.) 106 SW 340; Domingues v. State, 37 Tex. Cr. 425, 35 SW 973 (construing Code Cr. Proc. [1895] § 467); White v. State, (Cr.) 35 SW 391; Wadgymar v. State, 21 Tex. A. 459, 2 SW 768; Casey v. State, 5 Tex. A. 462; Turner v. State, 3 Tex. A. 551; Thornberry v. State, 3 Tex. A. 36. Utah.-State v. Sheffield, 45 Utah 426, 146 P 306. Vt.-State v. Wakefield, 60 Vt. 618, 15 A 181; State v. J. H., 1 Tyler 444. Alta.-Rep. v. Davis, 5 Alta. L. 443. Ont.-McGuiness v. Dafoe, 27 Ont. 117 [aff 23 Ont. A. 704]. "An affidavit so defective in this respect as not to charge an offense does not authorize the issue of a warrant of arrest, and furnishes no [a] "The object of the written information is for the protection of the accused, so that later on when summoned he may know exactly what proceedings were taken and what charge was laid against him at the beginning." Per Martin, J., in In re Thompson, 14 B. C. 314, 316, 11 WestLR 517. [b] Detention without trial of person known to magistrate.-Magistrates have no authority to detain a person known to them until some other person makes a charge against him. Before they detain a known person they should have a charge actually made. Rex v. Birnie, 5 C. & P. 206, 24 ECL 528. [c] In Colorado, where an information joining counts for larceny and for receiving stolen goods is verified, there is a compliance with Const. art 2 § 7, requiring every warrant to be supported by oath or affirmation, although an affidavit filed with the information refers to but one of the offenses charged. Curl v. Peo., 53 Colo. 578, 127 P 951, AnnCas1914B 171. 59 SE 475. See also State v. Beebe, 13 Kan. 589, 19 AmR 93 (holding that where accused is arrested without warrant he must be taken immediately before a magistrate, a complaint must be filed against him, and a warrant must be issued wherewith to hold him, otherwise he cannot lawfully be taken and kept in custody). But see Keefe v. Hart, 213 Mass. 476, 100 NE 558, AnnCas1914A 716 (holding that an officer making an arrest without a warrant need not make formal complaint under oath, if he decides that his suspicions were unfounded, he being required only to bring the prisoner before a magistrate and to state the facts to him); Hobbs v. Hill, 157 Mass. 556, 32 NE 862 (where a statute providing for the arrest without a warrant of a person found in a drunken condition, and that complaint shall be made by the officer when the person arrested shall have sufficiently recovered, etc., was held not to require a written complaint). [a] Although the filing of a written information may not be required expressly by the code of criminal procedure where the arrest is without a warrant, it is required by implication by Code Cr. Proc. §§ 145, 148-150, 188, 192-194, relating to the arraignment and examination, defining the information as the allegation made to a magistrate that a person is guilty of a crime, and requiring the magistrate before whom an information is laid to take in writing the depositions of the prosecution and witnesses, and to read these to the prisoner at the examination; and therefore a commitment on the adjournment of an examination without such information was illegal. Peo. v. Crane, 94 App. Div. 397, 88 NYS 343. 3. [d] In Missouri, under Rev. St. § 2750, a justice of the peace cannot issue à warrant for the arrest of accused until the prosecuting attorney has filed an information, unless he finds that accused is about to escape, or that he is without a known place of abode or without 72 S property likely to restrain him from 76]; leaving for the offense charged; and a warrant issued on the mere affidavit of the complaining party and without such finding by the justice is illegal. McCaskey v. Garrett, 91 Mo. A. 354. [e] In North Dakota, under Comp. L. (1913), a criminal action instituted directly in the county court, and not before a committing magistrate, must, as a basis for the issuance of a warrant of arrest, be instituted through a complaint verified on oath or affirmation. State v. Ramsey, 31 N. D. 626, 154 NW 731. 4 Peo. v. Ostrosky, 95 Misc. 104, 160 NYS 493. 4. Sherrod v. State, 197 Ala. 286, 540 [rev 14 Ala. A. 57, 71 S Brooke v. State, 155 Ala. 78, 46 S 491. 5. Annis v. Peo., 13 Mich. 511; State v. Gieseke, 209 Mo. 331, 108 SW 525; State v. Bullock, 54 S. C. 300, 32 SE 424; State v. Bowman, 43 S. C. 108, 20 SE 1010. See Indictments and Informations [22 Cyc 193]. [a] In Missouri where, by statute, prosecution before a justice of the peace is by information filed by the prosecuting attorney, no affidavit is necessary. State v. Ransberger, 106 Mo. 135, 17 SW 290; State v. Sweeney, 56 Mo. A. 409. 6. Peo. v. Hicks, 15 Barb. (N. Y.) 153. [f] The Philippine Bill provides that no warrant of arrest shall issue [a] Defendant held for complaint except upon probable cause sup- in another court.-Where the pracported by oath or affirmation. U. S. tice is to examine a complainant unv. Ocampo, 18 Philippine 1. der oath for the purpose of issuing a 2. Conn.-Tracy V. Williams, warrant, and holding defendant for Conn. 107, 10 AmD 102. a complaint by complainant in anInd.-O'Brian v. State, 12 Ind. 369. other court, a written complaint in Kan.-Prell V. McDonald, 7 Kan. the first instance is not required. 426, 12 AmR 423. Smith v. Hayden, 6 Cush. (Mass.) N. Y.-Peo. v. Crane, 94 App. Div. | 111. 397, 88 NYS 343. [b] In Michigan (1) where the Va.-Hill v. Smith, 107 Va. 848, offense is not cognizable by a jus which is generally the case." notary.14 In the federal courts the complaint or affidavit may be subscribed and sworn to before any officer in any jurisdiction authorized to take and subscribe oaths and affirmations in criminal proceedings by the law of the United States.15 [§ 497] 3. Who May Make. It is a rule of the common law of immemorial origin that, in the absence of statutory requirement to the contrary, complaints may be made by any person who legally can be a witness, and who has knowledge or information of any violation of the criminal law;16 but sometimes the authority to make complaints in particular cases is regulated by statute."7 Express [496] 2. Before Whom Made. In the absence of a statute requiring that the oath to an information be taken before the judge or the court issuing the warrant, it may be taken before any officer authorized to administer such an oath." When the matter is regulated by statute, and a particular offieer is named before whom the information or affidavit must be sworn to, the statute must be followed.10 Generally the complaint or affidavit must be made and verified before a magistrate or judge;11 it cannot be made and verified before a clerk of the court 12 or before a notary public,13 unless the statute permits the oath to be administered by a clerk or a tice the complaint need not be in | complaints for those offenses, nor writing (Peo. v. Bechtel, 80 Mich. from issuing warrants returnable to 623, 45 NW 582, 80 Mich. 633, 45 the police court. Com. V. O'ConNW 585; Peo. v. Clark, 33 Mich. 112); nell, 8 Gray 464. (2) although the better practice is to reduce it to writing (Peo. V. Clement, 72 Mich. 116, 40 NW 190). [c] In New York, under the statute providing for the examination of a complainant under oath, etc., before the issuance of a warrant, it was held that a complaint need not be in writing nor under oath, although the examination of the party complaining must be under oath before the warrant issues. Matter of Boswell, 34 HowPr 347. See also Sleight v. Ogle, 4 E. D. Smith 445 (holding that the examination need not be reduced to writing except for the protection of the magistrate). But see Peo. v. Fuerst, 13 Misc. 304, 34 NYS 1115 (holding that the arrest of one as a "disorderly person" under the statute is unauthorized where the complaint is first prepared and sworn to after defend- [a] Clerk pro tempore. It is no ant is taken before the magistrate ground for arresting judgment in a under such arrest, and that a dis- criminal case that in the copy of orderly person, as defined by the the record of the police court in statute, is not guilty of the com- which it was commenced, attested mission of either a misdemeanor or by the clerk of that court, the coma felony, and therefore the section of plaint appears to have been certified the code of criminal procedure allow-by another person as clerk pro teming a peace officer to arrest a person pore, and no contingency in which for a crime committed or attempted the appointment of such a clerk is in his presence does not apply). authorized by statute is stated. 7. See cases supra note 1. Com. v. Clark, 16 Gray (Mass.) 88. 12. Lloyd V. State, 70 Ala. 32; Peo. v. Colleton, 59 Mich. 573, 26 NW 771. 13. U. S. v. Smith, 17 Fed. 510; Brown v. State, 16 Ga. A. 268, 85 SE 262; Peo. v. Nowak, 1 Silv. Sup. 411, 5 NYS 239, 7 N. Y. Cr. 69. 8. See infra text note 10 et seq. 9. U. S. v. Baumert, 179 Fed. 735; Carrow V. Peo., 113 Ill. 550; State v. Freeman, 59 Vt. 661, 10 A 752. [a] A chief of police is sometimes authorized to administer the oath. State v. Turner, 170 N. C. 701, 86 SE 1019. 14. Ala.-Hamilton v. State, 153 Ala. 63, 44 S 968; Roland v. State, 147 Ala. 149, 41 S 963; Pruett v. State, 141 Ala. 69, 37 S 343; Dillard v. State, 137 Ala. 106, 34 S 851. Cal.-Peo. v. Mullaly, 16 Cal. A. 44, 116 P 88. Ga. Mitchell v. State, 126 Ga. 84, 54 SE 931; Shuler v. State, 125 Ga. 778, 54 SE 689; Wright v. Davis, 120 Ga. 670, 48 SE 170. Ill.-Peo. v. Bitzkus, 166 Ill. A. 396. Mo.-State v. Mullen, 52 Mo. 430. Nebr.-State v. Louver, 26 Nebr. 757, 42 NW 762. [b] "Every notary public has power to administer oaths (1) or affirmations. (Code Civ. Proc., sec. 2093.) And, since the statute does not designate any particular officer before whom the complaint must be verified, it necessarily follows that the verification may be attested by anyone authorized to administer an oath. (Dunn v. Ketchum, 38 Cal. 93.) Every clerk of any court is placed upon the same footing in this respect as a notary." Peo. v. Mullaly, 16 Cal. A. 44, 46, 116 P 88; In re Mills Sing, 13 Cal. A. 736, 740, 110 P 693. (2) "Such depositions, however, must be taken by the magistrate, as must all preliminary evidence introduced tending to show the commission of an offense, and that there is reasonable ground to believe the defendant has committed [b] In Pennsylvania it has been held that an alderman has power to administer an oath in a ward other than that for which he was commissioned. Com. V. Frank, 7 Pa. Dist. 143, 21 Pa. Co. 120, 2 Dauph. Co. 6. But see Com. v. Brower, 7 Pa. Dist. 254, 20 Pa. Co. 405 (holding that accused was entitled to his discharge where the committing magistrate took the information, issued the warrant, and made the commitment outside the town for which he was commissioned). To it. A superior judge assuming the same effect Com. v. Durham, 11 Pa. Dist. 663. 10. U. S. v. Baumert, 179 Fed. 735. 11. Lloyd v. State, 70 Ala. 32; Peo. v. Le Roy, 65 Cal. 613, 4 P 649; Edmondson v. State, 123 Ga. 194, 51 SE 301; Peo. v. Nowak, 1 Silv. Sup. 411, 5 NYS 239, 7 N. Y. Cr. 69. [a] A justice of the peace is a magistrate before whom such a complaint may be made. Code (1907) $$ 7519, 7585; Red V. State. 167 Ala. 96, 52 S 885; Lauzaza v. State, 1 Ala. A. 205, 55 S 444. cer [b] In Massachusetts it was held that the fact that a police court had exclusive jurisdiction over tain offenses did not prevent the justice of the peace from receiving duties of a magistrate has no right to call in the clerk or any other officer to administer oaths. He sits as a creature of the statute with such powers only as are conferred upon justices of the peace or police judges. (Peo. V. Cohen, 118 Cal. 74, 50 P 20.) It must be held, therefore, that the complaint verified before a deputy clerk cannot be used as a deposition upon a preliminary hearing; nor was it a deposition authorizing the issue of the warrant of Sing, supra. arrest." In re Mills [c] In Massachusetts (1) the assistant clerk of the district court has authority to receive a complaint addressed to the court and to administer the oath thereon. Com. V. Svarnas, 224 Mass. 597, 113 NE 569. (2) A like rule has been held to apply to an assistant clerk of the municipal court of Boston. Com. v. Wetherbee, 153 Mass, 159, 26 NE 414. 15. U. S. v. Baumert, 179 Fed. 735; U. S. v. Smith, 17 Fed. 510. 16. U. S.-U. S. v. Skinner, 27 F. Cas. No. 16,309, 1 Brunn. Coll. Cas. 446. Fla.-Lee v. Van Pelt, 57 Fla. 94, 99, 48 S 632 [cit Cyc]. La.-State v. Elfer, 115 La. 934, 40 S 370. Me.-State v. Giles, 101 Me. 349, 64 A 619. Mass. -Com. v. Gay, 153 Mass. 211, 26 NE 571, 852; Com. v. Murphy, 147: Mass. 577, 18 NE 418; Com. v. Carroll, 145 Mass. 403, 14 NE 618; Com. v. Alden, 143 Mass. 113, 9 NE 15; Com. v. Tobias, 141 Mass. 129, 6 NE 217. Mich.-Peo. v. Stickle, 156 Mich. 557, 121 NW 497; Pardee v. Smith, 27 Mich. 33. Pa.-Com. v. Barr, 25 Pa. Super. 609; In re Medical Practice, 23 Pa. Dist. 296, 42 Pa. Co. 209 (attorneygeneral's opinion). R. I.-State v. Woodmansee, 19 R. I. 651, 35 A 961. Tex.-Wooten V. State, 57 Tex. Cr. 89, 121 SW 793; Daniels v. State, 2 Tex. A. 353. Vt.-State Treasurer v. Rice, 11. Vt. 339. [a] A prosecutor is one who instigates a prosecution by making an affidavit charging a named person' with the commission of a penal of-. fense, on which a warrant is issued or an indictment or accusation is based. Eady v. State, 10 Ga. A. 818, 74 SE 303. [b] Attorney for creditors of bankrupt.-In a case where the evidence of fraud by a bankrupt is clear, the attorneys for the creditors will do nothing more than their duty, if they submit the facts to the district attorney for criminal prosecution. In re Simon, 151 Fed. 507. by [c] A complaint sworn to three persons is the affidavit of each of the three persons who subscribed to it. State v. Plomondon, 75 Kan. 853, 854, 90 P 254 (where the court said: "The original complaint was sworn to by three persons. It is urged that appellant could not be tried lawfully upon a warrant issued upon a complaint thus verified; that the fact that three persons subscribed to it warrants the inference that it required the combined knowledge of all of them, and that neither possessed sufficient knowledge or information to authorize him alone to verify it. There is no merit in the contention. The affidavit is the affidavit of each of the three persons who subscribed to it. It would have been sufficient with the signature and oath of either one, and no stronger nor any less efficient because the others joined in making it"). 17. See statutory provisions; and cases infra this note. [a] The authority of a peace officer or a policeman (1) to file a com |