to hold preliminary examinations may be exercised by United States commissioners, 34 and United States district judges 35 who, while taking the preliminary examination, exercise the powers of commissioners only.36 Where the examination is transferred by the commissioner before whom the warrant is returnable to another commissioner in the same district, the latter has jurisdiction to take the examination and to commit defendant, if the charge is sustained.37 Action of clerk under magistrate's supervision. When the statute provides that the clerk may examine witnesses applying for warrants, may reduce the examination to writing and file it, and may issue all warrants, his action in so doing does not render the subsequent examination of accused by the justice invalid, as the statute assumes that the clerk acts under the justice's supervision.38 Right to call in another magistrate. The statutes sometimes allow or require examining magistrates to associate with themselves other magistrates.39 When a statute provides that one justice cannot commit or hold to bail, but must associate another justice with himself, his assumption of the power to A. 160, 16 SW 903, 28 AmSR 899. [a] A mayor of a city is ex officio a justice of the peace with jurisdiction as an examining magistrate. Butler v. Com., 81 Va. 159. But see Holmes v. State, 44 Tex. 631 (where it was held that a mayor has no jurisdiction to sit as an examining court or to hold to bail to answer for a felony, and that a bail bond executed before a mayor in such proceedings is a nullity). 32. Matthews v. State, 96 Ala. 62, 11 S 203. 33. Wieden v. State, 141 Wis. 585, 124 NW 509. 34. Pereles v. Weil, 157 Fed. 419 [app dism 179 Fed. 1022, 102 CCA 667]; U. S. v. Yarborough, 122 Fed. 293; U. S. v. Greene, 100 Fed. 941; U. S. v. Hughes, 70 Fed. 972; In re Martin, 16 F. Cas. No. 9,151, 5 Blatchf. 303; U. S. v. Rundlett, 27 F. Cas. No. 16,208, 2 Curt. 41; In re Van Campen, 28 F. Cas. No. 16,835, 2 Ben. 419. See United States Commissioners [39 Cyc 795]. 35. U. S. v. Hughes, 70 Fed. 972. 38. NW 836. 39. Peo. v. Sehorn, 116 Cal. 503, 48 P 495; Peo. v. Sansome, 98 Cal. 235, 33 P 202. [a] In Alabama, when a justice of the peace issues a warrant of arrest, returnable before himself, he may associate with him on the trial of the preliminary examination "one or more magistrates of equal grade" (Code [1876] § 4693), and it is no objection to the validity of their proceedings when thus sitting that the associate justices are acting outside of their respective beats or precincts; nor are their proceedings void because one of the associates is incompetent to sit. Boynton v. State, 77 Ala. 29. 40. Murphy V. Com., 11 Bush (Ky.) 217; Revill v. Pettit, 3 Metc. (Ky.) 314. act singly renders his committal void.40 In Absence or inability to act. Where the justice issuing the warrant is absent or unable to act, the officer making the arrest may take the person before another justice of the peace of the same county, who may make the examination and commit.41 order that this may be done it is not indispensable that the warrant of arrest should contain a direction to that effect,12 nor need the order requesting the other justice so to act set forth the reason for the request.43 44 [§ 569] (2) Superior Courts. In some states, by statute, power to conduct preliminary examinations is conferred upon judges of the higher courts." It has been held that, without regard to the powers pertaining to his judicial office, a judge when exercising the functions of a magistrate in conducting a preliminary examination has only the jurisdiction and power conferred by law upon magistrates.45 But in New York, where a supreme court justice sits as a committing magistrate and complainant and defendant are represented by counsel and all available evidence is submitted in support of the charge and of the defense, the justice in determining as to the disposition of the case is substantially in the of the absence or inability to act 42. Ex p. Branigan, 19 Cal. 133. See also Childers v. State, 30 Tex. A. 160, 16 SW 903, 28 AmSR 899. [a] City court or judge.-State v. Pigg, 80 Kan. 481, 103 P 121, 18 AnnCas 521; Com. v. Leight, 1 B. Mon. (Ky.) 107; State v. Lacker, 263 Mo. 291, 172 SW 369. [b] County court or judge.-Ex p. Simpson, 3 Ala. A. 222, 57 S 518; Stetter v. State, 77 Nebr. 777, 110 NW 761. [c] District court or judge.State v. Baker, 133 La. 919, 63 S 403; State v. Livaudais, 34 La. Ann. 52; Cohoe v. State, 79 Nebr. 811, 113 NW 532; Van Buren v. State, 65 Nebr. 223, 91 NW 201. [d] Election frauds.-In Pennsylvania, under a constitutional provision that election officers shall be privileged from arrest on election day except on a warrant of the court of record or a judge thereof, each and every judge thereof may sit as a committing magistrate and may issue warrants for election frauds. In re Election Ct., 204 Pa. 92, 53 A 784. 45. Peo. v. Cohen, 118 Cal. 74, 50 P 20; Peo. v. Crespi, 115 Cal. 50, 46 P 863. (Pen. [a] "A superior judge, when sitting as a magistrate, possesses no other or greater powers than are possessed by any other officer exercising the functions of a magistrate. The justices of this court, judges of the superior courts, justices of the peace and police magistrates in cities and towns are each and all by the statute made magistrates. Code, sec. 808.) The office is purely a statutory one, and the powers and duties of the functionary are solely those given by the statute; and those powers are precisely the same whether exercised by virtue of one office, or that of another. The statute makes no sort of distinction between them. If a judge of a superior court, or a justice of this court, sees fit to assume the duties of a committing magistrate-duties which are usually by supreme others-he 44. 41. Ex p. Branigan, 19 Cal. 133, Ky. Com. v. Cummins, 18 B. Mon. has no performed position of a trial judge in a case tried before a judge and jury.46 49 48 [570] (3) Particular Magistrate or Judge Having Authority. The jurisdiction of particular magistrates and judges of the preliminary examination of persons accused of crime depends upon the statutes in the particular states.47 The jurisdiction of a justice is sometimes confined to the township or district for which he is commissioned, but in other jurisdictions it extends throughout the county or province.50 It has been held, in some jurisdictions in which a magistrate has power to issue a warrant of arrest for an offense committed in another county, that he has no authority to hold a court of inquiry to determine whether or not accused shall be committed,51 this authority being vested only in a magistrate of the county wherein the crime is charged to have been perpetrated;52 but the contrary also has been held.53 Jurisdiction does not depend upon the residence of defendant.54 The judge of a police or a municipal court, who has by statute the powers and authority belonging to justices of the peace, may act as a committing magistrate to inquire into violations of state laws;55 but in some jurisdictions, by statute, police judges cannot take cognizance of any offense committed beyond the limits of the city of which they are officers.56 While sitting as a magistrate, then, a judge of the superior court would have no more right to call in the county clerk or any other officer to administer oaths before him than would a justice of the peace or police judge. Nor would the county elerk or his deputies, although generally authorized to administer oaths, have any more right to perform that function before such judge sitting as a magistrate than before a justice of the peace, nor could they be required to do so in the one instance more than the other." Per Van Fleet, J., in Peo. v. Cohen, 118 Cal. 74, 78, 50 P 20. 46. Peo. v. Hebberd, 96 Misc. 617, 162 NYS 80. 47. Ala.-Lowe v. State, 86 Ala. 47, 5 S 435. Cal.-Peo. v. Sansome, 98 Cal. 235, 33 P 202. A magistrate who has no jurisdiction to issue a warrant for a criminal offense has no jurisdiction to hold an examination of accused and commit him to custody.57 In some jurisdictions a justice of the peace who entertains a criminal complaint and issues a warrant of arrest acquires jurisdiction to hold the preliminary examination and cannot be ousted by the officer making the arrest;58 but the right to have the preliminary examination held before the justice who issued the warrant may be waived;59 and such right is waived by accused's failure to assert it when he is brought before a justice in the same county and by expressly waiving preliminary examination.60 In other jurisdictions the preliminary examination may be held before a justice other than the one who issued the warrant.61 [571] d. Time for Examination-(1) In General. There usually is no fixed period after the arrest of defendant in which he must be given a hearing,62 and each case must depend on its own facts and circumstances.63 But where accused has the right to a preliminary examination, he is entitled to such examination as soon as the nature of the case will permit and without any avoidable delay.64 It has been held that defendant must be given a preliminary hearing before the next meeting of the grand jury following his arrest unless there is some S. D. 139, 156 NW 906. [a] Justice de facto. A justice [b] Alderman.—In Pennsylvania a like rule has been applied to the 156 P 421. ceive an affidavit and to issue a warrant, and that the imprisonment of the offender beyond a reasonable' time for that purpose would be illegal). Iowa.-State v. Freeman, 8 Iowa 428, 74 AmD 317. La.-State v. Aucoin, 47 La. Ann. 1677, 18 S 709. Mich.-Matter of Peoples, 47 Mich. 626, 14 NW 112. Nev. Ex p. Ah Kee, 22 Nev. 374, 40 P 879. N. J.-State v. Kruise, 32 N. J. L. 313. N. Y.-Nowak v. Waller, 56 Hun 647, 10 NYS 199 [aff 132 N. Y. 590 mem, 30 NE 868 mem]; Arnold v, Steeves, 10 Wend. 514. Andrus, 29 Ida. 1, 683. 50. King v. Lynn, 4 Sask. L. 324, 19 CanCrCas 129. 51. Burrow v. Southern R. Co., 139 Ga. 733, 78 SE 125. 52. Burrow V. Southern 139 Ga. 733, 78 SE 125. R. Co., 53. Johnston V. State, 2 Yerg. 54. State v. Williams, 84 S. C. 21, 103 P 121, 18 AnnCas 521. Vt.-Treasurer v. Clark. 19 Vt. 129. [a] Jurisdiction of judge of court which is to try cause.-Under L. (1895) c 24, giving an Oshkosh municipal court judge the jurisdiction 65 SE 982. of a justice of the peace in criminal cases and defining the court's juris- S 435; State v. Pigg, 80 Kan. 481, diction, the judge may bind over a prisoner for subsequent trial by the municipal court. Watke V. (Wis.) 163 NW 258. Compare State Y. Solomon, 158 Wis. 146, 147 NW 640, 148 NW 1095, AnnCas1916E 309 (holding that a person tried in the district court of Milwaukee county P 421. did not have a right to a preliminary examination by such court). State, 56. State v. Davis, 26 Kan. 205. 57. Peo. v. Tighe, 146 App. Div. 491, 131 NYS 693. 58. State v. Andrus, 29 Ida. 1, 156 P 421. 59. State v. Andrus, 29 Ida. 1, 156 60. State v. Andrus, 29 Ida. 1, 156 P 421. [b] In Arkansas Acts (1915) p 340, conferring jurisdiction on muni- LR 56, 23 CanCrCas 92. cipal courts to sit as examining courts, is not unconstitutional. State V. Woodruff, 120 Ark. 406, 179 SW 813. 61. Rex v. Daigle, (Que.) 18 Dom 62. Com. v. Sweetlick, 19 Pa. Dist. 397. 36 Pa. Co. 305. [c] In Idaho the statute gives probate judges jurisdiction. Fox v. Flynn, 27 Ida, 580, 150 P 44. [d] In South Dakota, under L. (1907) c 186, and Code Cr. Proc. tit 4 c 7, a county judge had jurisdiction to conduct the preliminary hearing of defendant charged with grand larceny. State v. Sonnenschein, 37 63. Com. v. Sweetlick, 19 Pa. Dist. Ga.-Wiggins v. Norton, 83 Ga. 148, N. C.-State v. Freeman, 86 N. C. Pa.-Com. v. Sweetlick, 19 Pa. Dist., 397, 36 Pa. Co. 305. Tex.-Bishop v. Lucy, 21 Tex. Civ. A. 326, 50 SW 1029. Va.-Morrissett v. Com., 6 Gratt. (47 Va.) 673. to Wis.-State v. Keyes, 75 Wis. 288, 292, 44 NW 13 (where the court, in holding that this requirement applies only to the examination on a charge, and not to the examination as whether a crime had been committed, said: "It is also contended that the examination shall be immediate and summary, and shall be within one day, unless continued for cause, and sec. 4744, R. St., is cited as so requiring. But that section relates to proceedings before the justice on the return of the warrant with the accused. The justice shall then proceed to hear, try, and determine the cause within one day, etc. It does not relate to the examination of the complainant and the witnesses produced by him upon this preliminary inquiry. In that there is no limit of time or of the number of witnesses. These are left by the statute within the reasonable discretion of the justice"). Eng. Wright v. Court, 4 B. & C. 596, 10 ECL 718, 107 Reprint 1182; Scavage v. Tateham, Cro. Eliz. 829, 78 Reprint 1056. [a] Illustration.-A prisoner arrested at 4 A. M. cannot object that he was not taken before a magistrate until 9 A. M., as the statute requiring a prisoner to be carried before the magistrate contemplates that this A commit pressing reason which requires delay.65 Waiver of right. A prisoner may waive his statu- or Action for false imprisonment. Any unreasonable delay in holding an examination will constitute ground for an action for false imprisonment.70 72 accused or the prosecuting witness an opportunity to 78 The time for which the hearing may be adjourned is, in the absence of any statute prescribing it, understood to mean a reasonable time." In some states the statutes limit the time for which the examination may be adjourned without the prisoner's consent." But an adjournment for a longer period is not invalid, so as to render the subsequent examination a nullity, unless it actually has prejudiced defendant, or has tended to his prejudice in respect to a substantial right." In Canada it has been held that the statute providing that no remand on adjournment shall be for more than eight days has no application where accused has been admitted ment cannot be for more than two days at each time, nor for more than six days in all, unless by consent or motion of defendant. Ex p. Ah Kee, 22 Nev. 374, 40 P 879. [ 572] (2) Adjournment and Continuance. Where accused has been brought before the magistrate, the hearing may be continued or adjourned by the magistrate, in the exercise of a sound discretion.71 Thus an adjournment over a holiday," or a short adjournment, to enable the prosecution or accused to procure witnesses or evidence,73 or to give should be done within a reasonable | continued from day to day for sevtime. Bishop v. Lucy, 21 Tex. Civ. eral days, one of which, the 22d, was A. 326, 50 SW 1029. a legal holiday). [b] At common law three days was regarded as a reasonable time to wait for a preliminary examination. 2 Hawkins P. C. c 16 § 12. [c] One accused of a crime which can be tried only in a federal court may be committed by a state court for such a time as is reasonably necessary to place him in federal custody. Ex p. Smith, 5 Cow. (N. Y.) 273. 65. Com. v. Sweetlick, 19 Pa. Dist. 397, 36 Pa. Co. 305. 66. U. S. v. Worms, 28 F. Cas. No. 16,765, 4 Blatchf. 332; Ex p. Chambers, 32 Cal. A. 476, 163 P 223. 67. U. S. v. Worms, 28 Fed. Cas. No. 16,765, 4 Blatchf. 332. 68. Bishop v. Lucy, 21 Tex. Civ. A. 326, 50 SW 1029. 69. Nowak v. Waller, 10 NYS 199 [aff 132 N. Y. 590, 30 NE 868]. 70. See False Imprisonment [19 Cyc 354]. 71. U. S.-In re Ludwig, 32 Fed. 774; In re Macdonnell, 16 F. Cas. No. 8,771, 11 Blatchf. 79. Ala.-State v. Allen, 33 Ala. 422. Cal.-Peo. v. Flannelly, 128 Cal. 83, 60 P 670. 98. Conn.-Potter v. Kingsbury, 4 Day Ill. Ogden v. Peo., 62 Ill. 63. Kan. Tillson v. State, 29 Kan. 452. La. State v. Aucoin, 47 La. Ann. 1677, 18 S 709; State v. Recorder, 42 La. Ann. 1091, 8 S 279, 10 LRA 137. Mich.-Matter of Peoples, 47 Mich. 626, 14 NW 112; Hamilton v. Peo., 29 Mich. 173; Peo. v. Freeman, 20 Mich. 413. Minn. State v. Nerbovig, 33 Minn. 480, 24 NW 321. N. J.-State v. Kruise, 32 N. J. L. 313. N. Y.-Peo. v. Hodgson, 12 NYS 699 [aff 126 N. Y. 647 mem, 27 NE 378]. Pa.-Com. V. Sweetlick, 19 Pa. Dist. 397, 36 Pa. Co. 305. B. C. In re Ying Foy, 14 B. C. 254. [a] Where a week had elapsed between the first arraignment and the preliminary examination of one accused of rape, it was not error for the magistrate to refuse a further postponement so that accused might procure an attorney. Peo. v. Figueroa, 134 Cal. 159, 66 P 202. 79 73. Potter v. Kingsbury, 4 Day (Conn.) 98; State v. Aucoin, 47 La. Ann. 1677, 18 S 709; Matter of Blair, [c] In New York Code Cr. Proc. 32 Misc. 175, 65 NYS 640, 8 NYAnn § 191 provides that the examination Cas 54, 15 N. Y. Cr. 87; Peo. v. Le- must be completed at one session, cesse, 148 NYS 929; In re Ying Foy, unless the magistrate for good cause 14 B. C. 254. See also Peo. v. Hodg-shown adjourns it; and that the adson, 12 NYS 699 [aff 126 N. Y. 647 journment cannot be for more than mem, 27 NE 378] (where it was held two days at each time, unless by conthat it is in the discretion of the sent, or on motion of defendant. magistrate to make a reasonable Matter of Blair, 32 Misc. 175, 65 NYS postponement of the hearing of a 640; Peo. v. Lecesse, 148 NYS 929. charge, in order to enable complainant to be notified and the witnesses to be summoned, or for the necessary accommodation of other business before him); Wright v. Court, 4 B. & C. 596, 10 ECL 718, 107 Reprint 1182 (where it was held that a constable arresting a man on suspicion of felony must take him before a justice to be examined as soon as he reasonably can; therefore a plea justifying a detention for three days, in order that the party whose goods had been stolen might have an opportunity of collecting his witnesses and bringing them to prove the felony, was held bad on demurrer). 74. Pepper v. Mayes, 81 Ky. 673; State v. Aucoin, 47 La. Ann. 1677, 18 S 709. 75. Matter of Peoples, 47 Mich. 626, 14 NW 112; Tubbs v. Tukey, 3 Cush. (Mass.) 438, 50 AmD 744; Davis v. Capper, 10 B. & C. 28, 21 ECL 22, 109 Reprint 362. 76. Kemp v. Com., 18 Gratt. (59 Va.) 969. See Indictments and Informations [22 Cyc_418]. 77. Peo. v. Van Horn, 119 Cal. 323, 51 P 538; Hamilton v. Peo., 29 Mich. 173; Pardee v. Smith, 27 Mich. 33; State v. Nerbovig, 33 Minn. 480. 24 NW 321; Davis v. Capper, 10, B. & C. 28, 21 ECL 22, 109 Reprint 362: Cave v. Mountain, 1 M. & G. 257, 39 ECL 747, 133 Reprint 330. 78. See statutory provisions; and cases infra this note. [a] In California Pen. Code § 861 provides: "The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpones it. The postponement cannot be for more than two days at each time, nor more than six days in all, unless by consent or on motion of defendant." Peo. v. Bo72. Hamilton v. Peo., 29 Mich. 173 ren, 139 Cal. 210, 212, 72 P 899; Peo. (holding that the commitment for v. Van Horn, 119 Cal. 323, 51 P 538. trial is not void where a person was [b] In Nevada it is provided that arrested and brought before the mag- the examination must be completed istrate on a valid complaint on Feb- at one session, unless it is adjourned ruary 21, and the examination was for good cause shown. The adjourn [d] In North Dakota Rev. Codes (1899) § 7954 reads as follows: "The examination must be completed at one session unless the magistrate for good cause, adjourns it. The adjournment cannot be for more than three days at each time, nor more than fifteen days in all, unless by consent, or on the motion of the defendant." State v. Foster, 14 N. D. 561, 565, 105 NW 938. [e] In Virginia, under Code (1904) § 3963, where a prisoner has been arrested and a complaint has been duly filed against him before a police justice, the preliminary hearing may be postponed for cause shown by the commonwealth for a reasonable time, not exceeding ten days at one time, without defendant's consent. Hill v. Smith, 107 Va. 848, 59 SE 475. [f] In Canada, under Code § 679, which permits remands of not more than eight days each, on adjournment, the day following that on which the remand is made is counted as the first day, and it has been held that an adjournment from September 26 to October 5 was proper. Dick v. King, 15 Que. Pr. 54. [g] The delay of one who has been indicted, to demand the preliminary examination which he may elect to demand by statute, does not deprive him of his right if he applies for the examination before trial. State v. Strauder, 8 W. Va. 686. 79. Peo. v. Boren, 139 Cal. 210, 72 P 899; State v. Foster, 14 N. D. 561, 105 NW 938. "We do not think a postponement of the preliminary examination beyond six days, whether erroneous or not, affected the jurisdiction. If the postponement worked appellants any legal wrong, such wrong consisted in their temporary illegal confinement by the officer who had them in custody, for which, if not lawful, there would have been a remedy at the time." Peo. v. Van Horn, 119 Cal. 323, 326, 51 P 538. to bail.80 Necessity for commitment. In case of an examination in which it is necessary to commit defendant to jail to await a hearing or pending the examination, a writ of commitment is necessary,81 setting forth the cause of his detention 82 and why the examination is postponed.83 In some jurisdictions, however, an oral remand for a limited time is permitted by statute,84 but an oral remand for a period in excess of the time specified is illegal.85 But accused cannot be committed in such a case without first being brought before the magistrate.86 [573] e. Place of Examination. The preliminary examination of a person accused of a crime is so far a part or stage of the prosecution for such crime that it should be held in the county in which the crime was committed.87 The limit of the county is the limit of jurisdiction, and it is the province of the prosecuting officer to designate the precinct where, and the magistrate before whom, such examination shall be had.88 [ 574] f. Second Examination. Where, on a preliminary examination before a justice of the peace, a defendant is admitted to bail without the examination of any witnesses as required by statute, it is not a bar to a subsequent examination on the same charge before another officer, conducted according to the statutory requirements.89 90 [575] 2. Conduct of Examination-a. In General. Since, as has been seen, the right to a preliminary examination is given solely by statute," the procedure upon such examination, although practically the same in its essential features, varies somewhat according to the provisions in the various states, and the requirements of the statute must be substantially complied with."1 Such an examination is in no proper sense a trial,92 and the rules and principles which govern in respect to the form and 80. Dick v. Rex, 13 Que. Pr. 54. 81. Erwin v. U. S., 37 Fed. 470, 2 LRA 229; State v. Jones, 78 N. C. 420. 82. Erwin v. U. S., 37 Fed. 470, 2 LRA 229. 83. Erwin v. U. S., 37 Fed. 470, 2 LRA 229. 84. In re Walton, 11 Ont. L. 94, 6 OntWR 905 [sub nom Rex v. Walton). 85. Rex v. Goulet, (Que.) 20 Can CrCas 191. 86. Pratt v. Hill, 16 Barb. (N. Y.) 303; Ex p. Sarrault, 15 Que. K. B. 3 (where accused had shown signs of insanity). 87. construction of criminal pleadings, the scope and Federal courts. The Practice Conformity Act 97 assimilates all the proceedings for holding accused persons to answer before a court of the United States to the proceedings had for similar purposes under the laws of the state where the proceedings take place, and the preliminary examination therefore must be conducted in accordance with the provisions of the statute regarding such examinations in that state.98 Where two persons are jointly charged, their separate examination is in the discretion of the court.99 [§ 576] b. Right of Accused to Be Present. Accused has the right to be present during the preliminary examination, and all the proceedings should be in his presence and hearing. He cannot defeat the proceedings, however, by neglecting to appear before the magistrate.2 [ 577] c. Right of Accused to Public Examination. In some jurisdictions it seems that accused has an absolute right to a public examination before the committing magistrate, although he may waive such right by requesting the exclusion of all per to be held elsewhere.' 89. Ex p. Walsh, 39 Cal. 705. 3 (Rev. Stats., | pending. Bail bonds, taken by the commissioner, should conform in all substantial particulars to the requirements of the state laws, so far as such laws may be applicable to the federal courts"). And see infra 618. 91. Peo. v. Hendrickson, 8 How. 93. Turner v. Peo., 33 Mich. 363. Peo. v. Reynolds, 155 NYS 121, 710. State v. Clark, 4 Ida. 7, 35 P 96. Dick v Rex, 13 Que. Pr. 54. In re Kelly, 46 Fed. 653. 88. State v. Griffin, 4 Ida. 462, 40 P 58 (where the court said: "It is not charged or contended but that the preliminary examination was in 98. U. S. v. Sauer, 73 Fed. 671, 674 strict accordance with the provisions (where the court said: "Section 1014 of the statute. It is contended that assimilates all the proceedings for the defendant had the absolute right, holding accused persons to answer under the statute, to insist upon an before a court of the United States examination before a magistrate of to the proceedings had for similar the precinct in which the crime was purposes under the laws of the state charged to have been committed. where the proceedings take place. This contention has nothing to sup- The term, 'agreeably to the usual port or recommend it. It is predi- mode of process against offenders in cated upon the erroneous idea, which such state' as used in the statute, seems to have obtained in the minds should be so construed as to include of some people in this country, that all the regulations and steps incident the primary object of the criminal to the proceeding before the commislaws is the protection of criminals. sioner from its commencement to its The limit of the county is the limit termination, as prescribed by the of jurisdiction in matters of prelimi- state laws, so far as they may be apnary examinations, and the prosecut-plicable to the federal courts. The ing officer will designate the precinct authority of the commissioner, therewhere, and the magistrate before fore, to take bail for the appearance whom, such examination will be had; of an accused person to further an'but all hearing on preliminary ex- swer the charge before him is existaminations must, as far as possible, ent or nonexistent accordingly as it be had before the magistrate most may be conferred upon or denied to convenient to the majority of wit- examining magistrates by the laws nesses for the prosecution, unless, of the state in which the proceedings for good cause shown, it is ordered before the commissioner may be 99. Peo. v. Burns, 121 Cal. 529, 53 P 1096. 1. U. S.-U. S. v. Rundlett, 27 F. Cas. No. 16,208, 2 Curt. 41. Ky.-St. Clair v. Com., 11 KyL 812. Mich.-Peo. v. Curtis, 95 Mich. 212, 54 NW 767; Stuart v. Peo., 42 Mich. 255, 3 NW 863. N. Y.-Peo. v. Collins, 20 HowPr 111; People v. Drury, 2 Edm. Sel, Cas. 351; Peo. v. Restell, 3 Hill 289. N. D.-State v. Beaverstad, 12 N. D. 527, 97 NW 853. Eng. Reg. v. Johnson, 2 C. & K. 394, 61 ECL 394; Rex v. Payne, 1 Ld. Raym. 729, 91 Reprint 1387; Rex v. Fearshire, 1 Leach C. C. 240. 2. State v. Justus, 86 Kan. 848, 122 P 877; State v. McLain, 13 N. D. 368, 102 NW 407. 3. Peo. v. Tarbox, 115 Cal. 57, 61, 46 P 896 (where the court said: "Section 868 of the Penal Code provides: "The magistrate must, also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor, and his counsel, the attorney general, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in custody.' It is argued, however, that the defendant had no power to waive the provisions of section 13, of article 1 of the constitution, which provides: 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial." In Peo. v. Swafford, 65 Cal. 223, 3 P sons except those necessary under the provision of the statute authorizing preliminary examinations.* In others, however, it is held that the examining magistrate may exclude all persons except those made necessary by the statute. by Counsel-(1) [§ 578] d. Representation The Prosecution. The prosecuting attorney has the right to be present at the preliminary examination of a person accused of a public offense," but it is not necessary for him to be present unless required by statute or requested by the magistrate." Private counsel may be employed by the prosecution to conduct such examination or to assist therein, if the magistrate and the prosecuting attorney do not object, and there is no good reason forbidding it, since such examination is merely an investigation and not a trial, and no harm can be done to accused or to the people by the fullest inquiry." [§ 579] (2) The Accused. In the absence of a statute a person accused of an offense is not entitled as of right to representation by counsel upon his 809, an order of exclusion was sus- and upon that case appellant re- 4. Peo. v. Tarbox, 115 Cal. 57, 46 P 896. preliminary examination.10 At the present day, however, in most if not all of the states, accused is entitled to the services of counsel upon his preliminary examination,11 and such counsel, as well as the prisoner, has the right to be present at the examination of witnesses.12 Where accused has secured the aid of counsel on his preliminary examination, such counsel may aid him by suggesting material points which he has omitted in his statement; 13 and a refusal to allow such aid is error which will not be cured by a subsequent permission to make a further statement.14 Duty of court to inform as to right. Except where accused appears before the magistrate with counsel,15 it is the duty of the court, in addition to informing accused of the charge against him, to inform him of his right to the aid of counsel in every stage of the proceedings.16 Allowance of time to secure counsel. In addition to the information as to the right of counsel, the magistrate must allow accused a reasonable time to prosecuting attorney in advance of the issue of any warrant, and refuse a warrant even when the complainant is able to make prima facie showing of a technical offense, if the prosecuting attorney is of opinion that the case would fail on full hearing, or that the criminal intent was so far wanting that the cause of justice would not be advanced by the prosecution." Beecher v. Anderson, 45 Mich. 543, 548, 8 NW 539. 7. McCurdy v. New York L. Ins. Co., 115 Mich. 20, 72 NW 996; Sayles v. Genesee Cir. Judge, 82 Mich. 84, 46 NW 29; Beecher V. Anderson, 45 Mich. 548, 8 NW 539; Peo. v. Grady, 66 Hun 465, 21 NYS 381 [aff 144 N. Y. 685 mem, 39 NE 858 mem]. 8. McCurdy v. New York L. Ins. Co., 115 Mich. 20, 72 NW 996; Sayles v. Genesee Cir. Judge, 82 Mich. 84, 46 NW 29; Peo. v. Grady, 66 Hun 465, 468, 21 NYS 381 [aff 144 N. Y. 685 mem, 39 NE 858 mem] (where the court said: "We find no law which imposes on the district attorney any duty to attend on preliminary hearhas a right to attend and conduct such preliminary hearings seems reasonably clear, but this is entirely consistent with the right given to complainants, where the district attorney does not appear, to be represented by counsel. On such hearings the defendant usually seeks the advice, and has the aid of astute counsel, and we fail to see why, in the absence of the district attorney, the same privilege should not be accorded to the complainant, unless it is prohibited by law"). 5. Peo. v. Wyatt, 113 App. Div. 111, 99 NYS 114 [aff 186 N. Y. 383, 79 NE 330, 10 LRANS 159, 9 AnnCasings before the magistrate. That he 972]; Peo. v. Grady, 66 Hun 465, 21 NYS 381 [aff 144 N. Y. 685 mem, 39 NE 858 mem]; Peo. v. Wyatt, 39 Misc. 456. 80 NYS 198 [rev on other grounds 81 App. Div. 51, 80 NYS 816 (aff 176 N. Y. 253, 68 NE 353)]. And see Peo. v. Cornell, 6 Misc. 568, 27 NYS 859 (holding that, when a magistrate entertains an information or application for a warrant, he does not hold court, within the meaning of Code Civ. Proc. § 5. providing that the sittings of every court within the state shall be public and that every citizen may freely attend the same, and therefore he may exclude the public when examining witnesses on_such application). Excluding public at trial see infra § 2052. [a] In New York whether the examination shall be conducted secretly or in public would seem to be within the discretion of the magistrate, except that certain persons may not be excluded therefrom (Code Cr. Proc. §§ 202, 203). Peo. v. Quinn, 150 App. Div. 813, 135 NYS 477. 6. McCurdy v. New York L. Ins. Co., 115 Mich. 20, 72 NW 996; Peo. v. Grady, 66 Hun 465, 21 NYS 381 [aff 144 N. Y. 685 mem, 39 NE 858 mem]. [a] "The magistrate should govern his official action somewhat by his advice; he certainly ought very seldom to hold a party to bail or to convict him on trial when the prosecuting attorney in good faith advises him that no crime is made out. It would be proper, also, in many cases that he should seek the advice of the 9. Sayles v. Genesee Cir. Judge, 82 Mich. 84. 46 NW 29; McCurdy v. New York L. Ins. Co., 115 Mich. 20, 72 NW 996. 10. Peo. v. Johnson, 2 Wheel. Cr. (N. Y.) 361; Cox v. Coleridge, 1 B. & C. 37, 8 ECL 17, 107 Reprint 15 (where it was held that accused was not entitled to have a person skilled in the law present as an advocate in his behalf, it being a preliminary investigation only, and not conclusive upon him). 11. U. S.-Andersen v. Treat, 172 U. S. 24. 19 SCt 67, 43 L. ed. 351: U. S. v. Bollman, 24 F. Cas. No. 14,622, 1 Cranch C. C. 373. Cal.-Peo. V. Napthaly, 105 Cal. 641, 39 P 29; Peo. v. Elliott, 80 Cal. 296, 22 P 207; Peo. v. Barnes, 66 Cal. 594, 6 P 698: Kalloch v. San Francisco Super. Ct., 56 Cal. 229. Colo. In re Dolph, 17 Colo. 35, 28 P 470. N. Y.-Peo. v. Hicks, 15 Barb. 153; Peo. v. Fuller, 68 NYS 742, 15 N. Y. Cr. 344: Peo. v. Drury, 2 Edm. Sel. Cas. 351; Peo. v. Restell, 3 Hill 289; Son v. Peo., 12 Wend. 344 (holding, however, that a conviction would not be quashed because accused had no counsel at his preliminary examination). Tenn.-Touhey v. King, 9 Lea 422. [a] Presumption of authority of counsel.-As magistrates' courts are not courts of record, no written substitution of attorneys is required, and it is presumed that an attorney who appears for the prisoner has authority to represent him. Peo. v. Fuller, 68 NYS 742. 12. Peo. v. Fuller, 68 NYS 742, 15 N. Y. Cr. 344; Peo. v. Drury, 2 Edm. Sel. Cas. (N. Y.) 351; Peo. v. Restell, 3 Hill (N. Y.) 289. 13. Annis v. Peo., 13 Mich. 511, 518 (where a person, being on trial for larceny of a horse, made his statement to the jury, but omitted to say anything in regard to the material points in the case, and his counsel, without his knowledge, submitted to the court for approval a suggestion in writing to the prisoner in the following language, "I call your attention to the subject of your knowledge of the stolen mare, so that you may make a statement in reference to it or not," and the prosecuting attorney objecting, the court refused to permit such suggestion to be made. It was held that the court erred in its refusal, and that the suggestion of counsel in the manner proposed was unobjectionable, and should have been permitted). 14. Annis v. Peo., 13 Mich. 511. 15. Peo. v. Stein, 23 Cal. A. 108, 113, 137 P 271 (where the court said: "It was clearly unnecessary for the magistrate to go through the formality of advising the defendant of his right to the aid of counsel when it appeared that the latter had already exercised that right by employing an attorney to represent him at the hearing, the attorney so retained being present with the accused in the magistrate's court when the case was called for examination"). 16. Peo. v. Barnes, 66 Cal. 594. 6 P 698: Kalloch v. San Francisco Super. Ct., 56 Cal. 229; Peo. v. Crowley, 13 Cal. A. 322, 109 P 493; Peo. V. Randazzio, 194 N. Y. 147, 87 NE 112; Touhey v. King, 9 Lea (Tenn.) 422. [a] Presumption.-It will be presumed that the party was duly informed, in the absence of evidence to the contrary. Peo. v. Figueroa, 134 Cal. 159, 66 P 202. [b] The transcript of the proceedings before an examining magistrate, affirmatively showing that defendant "waived the service of an attorney." shows that defendant was |