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[§ 594] (b) As Manner of Taking Statement. to the manner of taking the statement of accused upon a preliminary examination, the general rule is that he merely should be asked, after being duly cautioned, if he has anything to say in answer to the charge, and that it is irregular for the magistrate to examine or to question him as in the case of an ordinary witness.92 In some states the magistrate, when accused has expressed his desire to make a statement, but before such statement is made, is required by statute to put to accused certain questions as to name, age, place of birth, residence, and business, and accused is then to be told that he may give any explanation which he may think proper of the circumstances appearing in the testimony against him, and may state any facts which he thinks will tend to his exculpation.94

[595] (c) Reduction to Writing. The statement of the accused must be reduced to writing as it is given, by the magistrate, or under his direction.95

[$ 596] (d) Reading Statement to Accused. It is, as a general rule, expressly required by statute that after the statement of accused has been taken down in writing it shall be read over to him;96 and in those states where the questions to be put to accused are prescribed by statute, his answer to each question is to be distinctly read to him as it is taken down, and is to be corrected, if he desires, until it is made to express what it is his purpose to

Pa. 641, 18 A 988; State v. Glass, 50 Peo.
Wis. 218, 6 NW 500, 36 AmR 845.

[a] In California (1) the sworn statement of accused given by him voluntarily as a witness in his own behalf at the preliminary examination is admissible on the trial. Peo. v. Kelley, 47 Cal. 125. (2) Under an earlier statute the rule was otherwise. Peo. v. Gibbons, 43 Cal. 557. 91. Peo. v. Winness, 3 N. Y. Cr. 89; Rex v. Fagg, 4 C. & P. 566, 19 ECL 652.

92. Peo. v. Gibbons, 43 Cal. 557 (where it was held that there was no authority conferred upon the justice to administer an oath to the prisoner upon his preliminary examination, nor to hear or to receive testimony from the mouth of accused in that proceeding, and that it was improper to admit statements made by the prisoner and detailed by the justice); Rex v. Wilson, 1 Holt N. P. 597, 3 ECL 234. But see Rex v. Ellis, R. & M. 432, 21 ECL 789 (where it was held that an examination of a prisoner charged with a felony taken without threat or promise, by the questions put by the magistrate, is notwithstanding admissible in evidence).

93. Peo. v. Gibbons, 43 Cal. 557; Peo. v. Winness, 3 N. Y. Cr. 89; N. Y. Code Cr. Proc. § 198. 94. Peo. v. Winness, 3 N. Y. Cr. 89; N. Y. Code Cr. Proc. § 198.

95. Peo. v. Gibbons, 43 Cal. 557, 559 (where the court, in speaking of the requirement that the prisoner's statement must be in writing, said: "The prisoner, in making the statement, is not to be exposed to the danger of willful misrepresentation, inattention, or forgetfulness upon the part of the persons present, who may afterwards appear as witnesses against him, testifying as to what he did or did not say in making his statement concerning the charge"); Wright v. State, 50 Miss. 332; Peo. v. Chapleau, 121 N. Y. 266, 24 NE 469; Bellinger V. Peo., 8 Wend. (N. Y.) 595; U. S. v. Rafael, 23 Philippine 184; N. Y. Code Cr. Proc. 200; 11 & 12 Vict. c 42 § 18. 96. Peo. v. Gibbons, 43 Cal. 557;

419.

97

state. No presumption as to such reading exists; it must be proved.98

[§ 597] (e) Signature to Statement. While it would seem to be the better practice to secure the signature of accused to his voluntary statement, if he is willing, yet according to the decisions this is not absolutely essential, but such statement may be used in evidence against him on his trial, where the prisoner, upon the reading of such statement, admits the truth thereof although he refuses to sign it.99

By the magistrate. The statement, whether signed by accused or not, must, in order to be admissible as evidence, be signed and certified by the examining magistrate.1

[598] i. Weight and Sufficiency of Evidence. At common law the rule is that if, upon the preliminary examination of a person accused of crime, "it manifestly appears that either no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must either be committed to prison or give bail.' 972 The strict rule of the common law does not, however, prevail in the modern practice in this country. Here it is a sufficient reason for holding accused to answer that the evidence adduced on the preliminary examination shows that an offense has been committed, and that there is probable cause to believe accused to be guilty thereof; and it is not necessary that the evidence should be of such a na

Hawaii.-Ex p. Higashi, 17 Hawaii

v. Moore, 15 Wend. (N. Y.) | A. 396, 82 P 347. 97. Peo. v. Gibbons, 43 Cal. 557. 428. 98. Peo. v. Moore, 15 Wend. (N. Ida.-State v. Layman, 22 Ida. 387, Y.) 419 (where it was held that 125 P 1042; In re Squires, 13 Ida. while an examination of a witness 624, 92 P 754; In re Sly, 9 Ida. 779, sworn to have been taken pursuant 76 P 766. to the statute will be presumed to have been read to or by the witness before it was signed by him, although the magistrate does not recollect that it was so read, the examination of a prisoner must be proved to have been read).

99. Peo. v. Moore, 15 Wend. (N. | Y.) 419; Peo. v. Johnson, 1 Wheel. Cr. (N. Y.) 193; Rex v. Thomas, 2 Leach C. C. 727; Rex v. Lambe, 2 Leach C. C. 625; Rex v. Telicote, 2 Stark. 483, 3 ECL 497.

[a] Reason for refusal to sign. By the statutes of some of the states prescribing the form of the preliminary examination, it is provided that while accused may refuse to sign his statement, his reason for such refusal must be stated as he gives it. Peo. v. Chapleau, 121 N. Y. 266, 24 NE 469; N. Y. Code Cr. Proc. $ 204 par 4.

1. Peo. V.

Chapleau, 121 N. Y. 266, 24 NE 469; Peo. v. Moore, 15 Wend. (N. Y.) 419; 11 & 12 Vict. c 42 § 18.

2. 4 Blackstone Comm. p 296; 2 Hale P. C. p 121. 3. U. S.-U. S. v. Burr, 4 Cranch 455, 2 L. ed. 684, 25 F. Cas. No. 14,692a; U. S. v. Johns, 4 Dall. 412, 1 L. ed. 888, 26 F. Cas. No. 15,481; Pereles v. Weil, 157 Fed. 419 [app dism 179 Fed. 1022, 102 CCA 667]; U. S. v. Greene, 100 Fed. 941, 108 Fed. 816; U. S. v. Cobb, 25 F. Cas. No. 14,820; U. S. v. Lumsden, 26 F. Cas. No. 15,641, 1 Bond 5; U. S. v. Steffens, 27 F. Cas. No. 16,384; In re Van Campen, 28 F. Cas. No. 16,835, 2 Ben. 419.

Ala.-Ex p. Simpson, 3 Ala. A. 322, 57 S 518.

Cal.-Peo. V. Sherman, 3 Cal. Unrep. Cas. 851, 32 P 879; In re Kawaguchi, 12 Cal. A. 498, 107 P 727; Peo. v. Coombs, 9 Cal. A. 262, 98 P 686; Ex p. Heacock, 8 Cal. A. 420, 97 P 77; In re Mitchell, 1 Cal.

Kan. In re Stilts, 74 Kan. 805, 87 P 1134; State v. Tennison, 39 Kan. 726, 18 P 948; Redmond v. State, 12 Kan. 172.

Me.-State v. Hartwell, 35 Me. 129. Mich.-Peo. V. Whittemore, 102 Mich. 519, 61 NW 13; Peo. v. Harrington, 75 Mich. 112, 42 NW 680; Peo. v. Evans, 72 Mich. 367, 40 NW 473; Yaner v. Peo., 34 Mich. 286.

Mont.-State V Second Judicial Dist. Ct., 26 Mont. 275, 67 P 943.

Nebr.-Jahnke v. State, 68 Nebr. 154, 94 NW 158, 104 NW 154; Rhea v. State, 61 Nebr. 15, 84 NW 414. Nev.-Ex p. Molina, 39 Nev. 360, 157 P 1012.

N. Y.-Peo. v. Quinn, 150 App. Div. 813, 135 NYS 477; Peo. v. Flynn, 135 App. Div. 276, 120 NYS 511; Peo. v. Crane, 80 App. Div. 202, 80 NYS 408; Matter of Henry, 13 Misc. 734, 35 NYS 210; Peo. v. Lecesse, 148 NYS 929; Peo. v. Shenk, 142 NYS 1081.

Oh.-Scovern v. State, 6 Oh. St.

288.

Pa.-Com. V. Burton, Vaux 83; Brown v. McCroskey, 10 Pa. Dist. 583; Com. v. Winterstein, 6 Pa. Dist. 641, 19 Pa. Co. 443.

Tex.-Ex p. Richards, 44 Tex. Cr. 561, 72 SW 838; Ex p. Burkham, (Cr.) 33 SW 974; Ex p. Walck, 25 Tex. A. 168, 7 SW 665.

Utah.-Marks v. Sullivan, 9 Utah 12, 33 P 224.

Wis.-State v. McGinley, 153 Wis. 5, 140 NW 332; Lundstrum v. State, 140 Wis. 141, 121 NW 883; Martin v. State, 79 Wis. 165, 48 NW 119. Que.-Rex v. Odell, 22 CanCrCas

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ture as would be necessary to convict accused upon his final trial. But in New York in a case in which a supreme court justice sits as a committing magistrate, and complainant and defendant are represented by counsel and submit all available evidence, the right to a discharge depends on the question whether if the justice were sitting as a trial justice he would be obliged upon all the evidence to acquit or to submit the case to the jury.5 A finding that a sufficient case has been made must be based on legal evidence." It has been held that where a statute requires that the testimony of complainant must be corroborated in order to justify a conviction, lack of corroborative testimony becomes essential upon the trial only. Thus a statute which forbids a conviction on the unsupported testimony of the prosecutrix, as in the case of seduction or rape, does not apply to a preliminary examination, but furnishes a rule of evidence for the trial only.

[b] The expression "probable cause," as used in the federal constitution, referring to the issuance of warrants, means that there is a probability that a crime has been committed by the person named in the warrant. Ex p. Heacock, 8 Cal. A. 420, 97 P 77; In re Squires, 13 Ida. 624, 92 P 754.

[c] Presumption as to sufficiency of evidence.-"When the evidence is not reduced to writing, we think it will be presumed, in the absence of any showing to the contrary, that the evidence was sufficient to authorize the decision of the magistrate, whatever that decision may be." Redmond V. State, 12 Kan.

172, 176.

So the confession of accused will justify holding him, although without proof of the corpus delicti or any other evidence. On the other hand, since a defendant cannot be convicted of a felony on the uncorroborated evidence of an accomplice, such evidence has been held insufficient to establish probable cause on a preliminary examination.10

In the federal courts a certified copy of an indictment found in another district is sufficient to justify the commitment of accused and his removal to such district.11

Magistrate to judge as to weight of evidence. If, upon a preliminary examination, there is any evidence given on the part of the prosecution which reasonably tends to show that accused is guilty of the offense charged, the decision of the examining magistrate will not be disturbed.12 Where the evidence is conflicting its weight is for the magistrate to determine.1 According to some decisions,

enile Ct., 17 Pa. Dist. 207.
Wis.-Martin v. State, 79 Wis. 165,
48 NW 119.

"On an application of this kind I
certainly should not require that
proof which would be necessary to
convict the person to be committed,
on a trial in chief; nor should I even
require that which should absolutely
convince my own mind of the guilt
of the accused: but I ought to re-
quire, and I should require, that
probable cause be shown; and I un-
derstand probable cause to be a case
made out by proof furnishing good
reason to believe that the crime al-
leged has been committed by the
person charged with having com-
mitted it." U. S. v. Burr, 25 F. Cas.
No. 14,692a, 4 Cranch C. C. 455.

[a] The phrase, "reasonable or probable cause," is not equivalent to "beyond a reasonable doubt." In re Squires, 13 Ida. 624, 92 P 754.

5. Peo. y. Hebberd, 96 Misc. 617, 162 NYS 80.

13

at the best upon a mere speculation that evidence may be found to corroborate that of the accomplice").

11. Pereles v. Weil, 157 Fed. 419 [app dism 179 Fed 1022, 102 CCA 667]; In re Alexander, 1 F. Cas. No. 162, 1 Lowell 530; U. S. v. Haskins, 26 F. Cas. No. 15,322, 3 Sawy. 262. See infra § 614 et seq.

12. U. S.-In re Rule of Ct., 20 F. Cas. No. 12,126, 3 Woods 502.

Cal.-Peo. v. Beach, 122 Cal. 37, 54 P 369; Peo. v. Sherman, 3 Cal. Unrep. Cas. 851, 32 P 879.

Ida.-State v. Layman, 22 Ida. 387, 125 P 1042.

Nebr.-Jahnke v. State, 68 Nebr. 154, 94 NW 158, 104 NW 154.

N. Y.-Peo. v. Perrin, 170 App. Div. 375, 155 NYS 698; Peo. v. Van de Carr, 87 App. Div. 386, 84 NYS 461; Matter of McFarland, 59 Hun 304, 13 NYS 22; Peo. v. Fox, 34 Misc. 82, 69 NYS 545; Matter of Blair, 32 Misc. 175, 65 NYS 640, 8 NYAnnCas 54, 15 N. Y. Cr. 87; Mat

6. Rex v. Traynor, 4 CanCrCaster of Henry, 13 Misc. 734, 35 NYS 410.

7. Peo. v. Warden City Prison, 56 Misc. 108, 106 NYS 139.

8.

[d] Evidence held sufficient to justify holding accused.-State V. Layman, 22 Ida. 387, 125 P 1042 (for maintaining a liquor nuisance); In re Squires, 13 Ida. 624, 92 P 754 (for murder); Peo. v. Auerbach, 176 Mich. 23, 141 NW 869, AnnCas1915B 557 (for murder); In re Kelly, 28 Nev. 491, 83 P 223 (for rape); Peo. V. Flynn, 135 App. Div. 276, 120 NYS 511 (for larceny of money received for transmission to foreign In re Dempsey, 65 NYS 717. country); Peo. v. Van de Carr, 87 9. U. S. v. Bloomgart, 24 F. Cas. App. Div. 386, 84 NYS 461, 18 N. Y. No. 14,612, 2 Ben. 356; Peo. v. CokaCr. 31 (for bribery); Peo. v. Crane, honour, 120 Cal. 253, 52 P 505. See $0 App. Div. 202, 80 NYS 408, 17 N. also Lundstrum v. State, 140 Wis. Y. Cr. 238 (for larceny by treasurer 141, 142, 143, 121 NW 883 [cit Cyc] of an association); In re Joerns, 51 (where the court said: "We do not Misc. 395, 100 NYS 503 (for aiding decide in this case that the fact that in abortion); Peo. v. Lecesse, 148 а crime has been committed may NYS 929 (for perjury in affidavit not be established on a preliminary for a marriage license); State v. Mc-examination solely by evidence of a Ginley, 153 Wis. 5, 140 NW 332 (for keeping disorderly house and letting premises for such purpose); Lundstrum v. State, 140 Wis. 141, 121 NW $83 (for murder).

[el Evidence held insufficient to justify holding accused.-Hartwell's Application, 28 Cal. A. 627, 153 P 730 (for burglary with intent to commit larceny); Ex p. Williams, 39 Nev. 440, 159 P 518 (for larceny from the person); Ex p. Oxley, 38 Nev. 379, 149 P 992 (for grand larceny).

4 U. S.-U. S. v. Johns, 4 Dall. 412, 1 L. ed. 888, 26 F. Cas. No. 15,481; Matter of Van Campen, 28 F. Cas. No. 16,835, 2 Ben. 419. Cal-Hartwell's Application, 28 Cal. A. 627, 153 P 730; In re Mitchell, 1 Cal. A. 396, 82 P 347. Ida-State v. Layman, 22 Ida. 387, 125 P 1042: In re Squires, 13 Ida. 624. 92 P 754.

Nebr-Jahnke v. State, 68 Nebr. 154, 94 NW 158, 104 NW 154; Rhea v. State, 61 Nebr. 15, 84 NW 414. Nev.-Ex p. Molino, 39 Nev. 360, 157 P 1012; In re Kelly, 28 Nev. 491, 83 P 223.

N. Y.-Matter of Henry, 13 Misc. 734, 35 NYS 210; Peo. v. Shenk, 142 NYS 1081.

Pa-In re Administration of Juv

confession of guilt by the accused
of the crime with which he has been
charged. Some courts hold that a
confession is not sufficient in itself
to show the commission of an of-
fense. We entertain no doubt that
a confession may be received and
considered by the examining magis-
trate in connection with other evi-
dence as proof tending to show that
an offense has been committed, and
that there is probable cause to be-
lieve the accused guilty thereof").

10. Ex p. Oxley, 38 Nev. 379, 149
P 992. See also State v. Smith, 138
Ala. 111, 115, 35 S 42, 100 AmSR 26
(where the court said: "The whole
theory of holding accused persons to
the grand jury is that the evidence
before the examining magistrate or
the judge on habeas corpus is suffi-
cient to sustain a finding of guilt
by a petit jury when he shall be
indicted and brought to the bar of
the court. When there is not such
evidence, it is not the contemplation
of the law that the accused shall
be held. To hold him would be a
vain and useless thing, involving his
incarceration not as a punishment
for crime and not really to the end
that he should be tried for a crime
charged of his probable guilt of
which there is evidence to prove, but

210.

N. D.-State v. Beaverstad, 12 N. D. 527, 97 NW 548.

Tex.-Ex p. Walck, 25 Tex. A. 168,. 7 SW 665.

Wis.-State v. McGinley, 153 Wis. 5, 140 NW 332.

Eng.-Reg. v. Clark, 5 Cox C. C.

230.

[a] "The examining magistrate has very broad latitude in the matter-if the evidence, in any reasonable view of it, satisfies him that a crime within the charge made has been committed and there is reasonable cause to believe the accused is the guilty party he is warranted in holding him to bail. If there is evidence sufficient to give the magistrate any room whatever for the exercise of judgment,-in other words, any jurisdiction to decide the questions of fact within the broad field of probability, then his decision cannot be reversed in the manner attempted in this instance." State v. McGinley, 153 Wis. 5, 7, 140 NW 332.

[b] The credibility of a witness and the weight to be attached to his testimony is usually a matter for the magistrate to determine. Ex p. Oxley, 38 Nev. 379, 149 P 992. [c] In New York city the determination of a committing magistrate that sufficient evidence has been produced before him to establish the commission of a crime, and sufficient cause to believe accused guilty thereof is conclusive, and there is no power lodged in the court of special sessions to review his determination. Peo. v. Perrin, 170 App. Div. 375, 155 NYS 698.

13. Yaner v. Peo., 34 Mich. 286; Matter of McFarland, 59 Hun 304, 306. 13 NYS 22 (where the court said: "There was before the recorder evidence, given on the part of the

however, upon habeas corpus proceedings it may be inquired as to whether there was any evidence before the magistrate that accused committed the crime charged, since, if there is no such evidence, the magistrate has no jurisdiction to commit.14

[§ 599] 3. Determination on Preliminary Hearing and Commitment for Trial15-a. Discharge or Holding to Answer-(1) In General. After the preliminary examination has begun, accused has a right to require that it shall be continued to a final determination, and that he shall be either discharged or held.16 The statutes are mandatory in this respect. Consequently, it is the duty of the magistrate before whom a preliminary examination is being held, after an examination of the whole matter, to come to a determination as to whether or not an offense has been committed; and if he is of opinion that there has been, then as to whether there

complainant, which the recorder had a right to believe, which tended to show the commission by respondent of the crime of larceny. There was conflicting evidence, but the weight of that was for the magistrate to determine, and should not be rejudged, in any ordinary case, at least, in habeas corpus proceedings").

is probable cause to believe accused guilty thereof;18
and the record of the magistrate should show find-
ings that these two conditions existed.19
If, upon
such examination, it appears that no offense has
been committed, or that there is not probable cause
for believing the prisoner guilty, it is the duty of
the magistrate to discharge him.20 If, however,
upon the whole evidence it appears that an offense
has been committed, and there is probable cause for
believing accused guilty thereof, and the offense is
bailable, and bail is offered, it should be taken, and
the prisoner discharged on bail; and if the offense is
not bailable, or if sufficient bail is not offered, ac-
cused should be committed by the examining magis-
trate.21 But accused cannot be required to give
sureties to keep the peace in the meantime.22 Where
accused is held it must be for the next term of court
following the hearing before the magistrate.23

Cal.-Peo. v. Swain, 5 Cal. A. 421, 90 P 720. Kan.-State v. Tennison, 39 Kan. 726, 18 P 948. Me.-State v. Hartwell, 35 Me. 129. Mich.-Peo. v. Evans, 72 Mich. 367, 40 NW 473.

Nebr.-Jahnke v. State, 68 Nebr. 154, 94 NW 158, 104 NW 154.

N. Y.-Peo. v. Wells, 57 App. Div. 140, 68 NYS 59; Peo. v. Drury, 2 Edm. Sel. Cas. 351; Son v. Peo., 12 Wend. 344.

N. D.-State v. Beaverstad, 12 N. D. 527, 97 NW 548.

trate may not commit him to answer | F. Cas. No. 15,641, 1 Bond 5. to a court having cognizance of the Ala.-Ex p. Simpson, 3 Ala. A. 222, crime, unless it appear that a crime 57 S 518. has been committed, and that there is sufficient cause to believe the defendant guilty thereof.' Crim. Code, sec. 208. It is not necessary that the evidence be conclusive, or sufficient to secure a conviction upon a trial. [a] "Where it is in doubt that an It may be less than that. In fine, offense has been committed, (1) the if there be any evidence that the party should be held by the exam- accused committed the crime it is ining court to further answer the sufficient. If there be no such eviaction of the grand jury." Ex p. dence, then the magistrate is withRichards, 44 Tex. Cr. 561, 565, 72 out jurisdiction to commit him. The SW 838. (2) "The rule that, where present inquiry therefore is wheththere is doubt as to the guilt of er there was any evidence before the accused, he is entitled to the the magistrate that the accused combenefit of it, does not apply in pre- mitted the crime; for that is the liminary examinations. It is suffi- test of his jurisdiction. Church on cient if the testimony shows, to the Hab. Cor., sec. 236. The petitioner satisfaction of the magistrate, a having alleged in his traverse that probable cause of guilt on the part there was no such evidence, the burof the accused. Barb. Crim. Law, den was upon him to show that to 522; 1 Chiť. Crim. Law, 33. If the be the case. To do so he put in evidence has a tendency to produce evidence all of the testimony taken in the mind of the justice the belief before the magistrate. I have thereof the probable guilt of the accused, fore to read it and determine whethand it does produce that belief, and er it contains any evidence that the he issues his warrant upon it, he accused committed the crime. . cannot be said to have issued it There is some evidence favorable to without jurisdiction, though further the accused; and it may be said that evidence would have been more sat- the evidence against him is not conisfactory or conclusive, or because clusive. But the law does not allow he has drawn stronger inferences me to weigh the evidence, pro and from it than he should have drawn. con, to form an opinion of guilt or Peo. v. Lynch. 29 Mich. 274. Nor innocence. The sole question is is it to be understood that a magis- whether there was any evidence upon trate would be liable for issuing a which the magistrate could make the warrant if the facts are not estab-order of commitment. I think there lished by the best testimony. He was. The writ is dismissed and must exercise his judgment in the the prisoner remanded." Matter of case; the judgment of no one else Henry, 13 Misc. 734, 735, 35 NYS 210. will do; and he is not, and should not be held, liable for a mere error in judgment, when he acts honestly, and within the scope of his authority." Marks v. Sullivan, 9 Utah 12,

16, 33 P 224.

14. Ex p. Williams, 39 Nev. 440, 159 P 518; Peo. v. Wells, 57 App. Div. 140, 68 NYS 59; Peo. v. McGirr, 39 Misc. 471, 80 NYS 171; Peo. v. Fox, 34 Misc. 82, 69 NYS 545; State v. Beaverstad, 12 N. D. 527, 97 NW 548; State v. Huegin, 110 Wis. 240, 85 NW 1046. 62 LRA 700.

15. Preliminary examination where magistrate has jurisdiction to try cause see supra § 559.

16. See infra this section.

17. Matter of Gessner, 53 HowPr
(N. Y.) 515. See also Cohen V.
Bruere, 96 Misc. 609, 614, 162 NYS
75 [aff 165 NYS 1080 mem] (where
the court said: "On the examination
the jurisdiction of the magistrate
was limited to one of two courses,
either to discharge or to hold to
answer (Code Crim. Pro., §§ 207,
208), and if the crime was bailable
to admit to bail in a specified sum
of money Id., § 212").

18. U. S.-U. S. v. Lumsden, 26
F. Cas. No. 15,641, 1 Bond 5.
Kan.-Redmond v. State, 12 Kan.

172.

Mich.-Peo. v. Evans, 72 Mich. 367, 40 NW 473; Yaner v. Peo., 34 Mich. 286.

"There is such a diversity of expression by text writers and judges in respect of whether such a commitment is conclusive, or whether, on the contrary, inquiry may go behind it upon the writ of habeas corpus, to ascertain whether the committing magistrate had any evidence before him upon which to make it. that I shall state what I concluded while at the bar and still believe the rule in this state to be. The question is one of jurisdiction in the magistrate. The jurisdiction of magistrates is limited. They may not arbitrarily commit one to answer a charge of crime. If an accused demand an examination, the magis- 20.

Nebr. Jahnke v. State, 68 Nebr. 154, 94 NW 158, 104 NW 154.

N. Y.-Peo. v. Wells, 57 App. Div.
140, 68 NYS 59; Son v. Peo., 12 Wend.
344.

N. D.-State v. Beaverstad, 12 N.
D. 527, 97 NW 548.
19.

See infra § 628.

U. S.-U. S. v. Lumsden, 26

[a] Reason for rule.-In such cases, it "is the right of the party at once to be relieved from a position involving a suspicion of crime, which may seriously affect, not only his social standing, but his pecuniary interests. And it may be remarked that the healthful and efficient administration of criminal law is not promoted by prosecutions which, in the last resort, fail to produce the conviction of the person accused. As a general rule, such futile prosecutions tend more to the encouragement than the repression of crime." U. S. v. Lumsden, 26 F. Cas. No. 15.641, 1 Bond 5, 7.

21. U. S.-Matter of Van Campen, 28 F. Cas. No. 16,835, 2 Ben. 419. Ala.-Ex p. Simpson, 3 Ala. A. 222, 57 S 518.

Kan.-State v. Tennison, 39 Kan. 726, 18 P 948; Redmond v. State, 12 Kan. 172.

Me.-State v. Hartwell, 35 Me. 129;
Osborn v. Sargent, 23 Me. 527.
Mass.-Com. v. Ward, 4 Mass. 497.
Mich.-Peo. V. Whittemore, 102
Mich. 519, 61 NW 13; Peo. v. Evans,
72 Mich. 367, 40 NW 473; Yaner v.
Peo., 34 Mich. 286.

N. Y.-Cohen v. Bruere, 96 Misc. 609, 162 NYS 75 [aff 165 NYS 1080 mem]; Matter of Joerns, 51 Misc. 395, 100 NYS 503; Son v. Peo., 12 Wend. 344.

N. D.-State v. Beaverstad, 12 N. D. 527, 97 NW 548.

Tex.-Ex p. Villareal, (Cr.) 187 SW 214; Ex p. Holcomb, 60 Tex. Cr. 204, 131 SW 604; Ex p. Richards, 44 Tex. Cr. 561, 72 SW 838.

Va.-In re Sorrell, 1 Va. Cas. (3 Va.) 253.

Wis. Martin v. State, 79 Wis. 165, 48 NW 119.

See generally Bail § 198. [a] Statute of limitations.-To warrant a commitment there must be a probability not only that a crime has been committe, but also that it has not been barred. Ex P. Vice, 5 Cal. A. 153, 89 1 983. 22. Knowles v. Davis, 2 Allen (Mass.) 61; Com. v. Ward, 4 Mass. 497.

23. Com. v. Sweetlick 19 Pa. Dist.

Degree of Offense. According to some decisions, where the offense charged includes others of lesser degree, the magistrate must determine also which offense, if any, has been committed, to the end that accused may not be put upon trial for an offense different from or greater than that for which he had been examined and held for trial, and also in order that it may be seen whether the offense is one bailable by him or not.24

Judicial determination. Such conclusion or opinion of the examining magistrate is a judicial determination, and is essential as a basis of the proceedings by information.25

In New York city a magistrate who sits merely as a committing magistrate and who does not undertake to hold a court of special sessions need not make the order required when such magistrate holds a court of special sessions and with the consent of defendant remits the case to a court of special sessions consisting of three justices.26

[600] (2) Detention to Institute New Proceedings. Where accused is acquitted because of a variance,27 because his arrest was illegal,28 or because the jury failed to agree,29 or where judgment is rendered for him on a plea in abatement,30 he may be detained in custody until a new warrant is obtained or an information or an indictment is filed. [§ 601] (3) Arrest on One Charge and Commitment on Another. If on the examination charging 397, 36 Pa. Co. 305.

24. Yaner v. Peo., 34 Mich. 286, 290 (where the court said: "Persons charged with crime are entitled of right to bail in all cases, except for capital offenses, or for murder in the first degree where the proof is evident or the presumption great.-§ 7868. And the statute, in pointing out the duty of the justice upon an examination, where it appears that an offense not cognizable by a justice has been committed, and there is probable cause to believe the prisoner guilty thereof, further provides that if the offense be bailable by the magistrate, and the person offer sufficient bail, it shall be taken and the prisoner discharged; but if no sufficient bail be offered, or the offense be not bailable by the magistrate, the prisoner shall be committed to prison for trial.'-§ 7860. The magistrate therefore must, 'upon the examination of the whole matter,' determine whether an offense has been committed, and he must at the same time specify it, so that it may be seen whether the offenses specified be bailable by the magistrate or not. This is one of the rights of the accused, of which the magistrate, by a failure to specify the offense, should not be permitted to deprive him. It may be necessary to his future liberty that he should be admitted to bail, so as to prepare to meet the charge of which, perhaps, he has been wrongfully accused").

25. Peo. v. Evans, 72 Mich. 367, 40 NW 473; State v. Beaverstad, 12 N. D. 527, 97 NW 548; State v. Huegin, 110 Wis. 189, 85 NW 1046, 62 LRA 700.

26. Peo. v. Sellaro, 178 App. Div. 27. 165 NYS 116 [aff 221 N. Y. 662 mem, 117 NE 1080 mem].

27. Cameron v. State, 13 Ark. 712. 28. Ex p. Crandall, 2 Cal. 144. 29. Taintor v. Taylor, 36 Conn. 242. 4 AmR 58. 30. Rowland V. State, 126 Ind. 517, 26 NE 485.

41 SE 605.

a certain crime the justice finds that accused has not committed it, but that he has committed a different crime, he should commit him until the appropriate complaint or affidavit can be filed, and then take his recognizance or commit him upon that charge.31

[§ 602] (4) Commitment for Further Examination. A person arrested on a criminal charge may be committed for further examination and held under such commitment for a reasonable time;32 but if he is committed for an unreasonable time the commitment and custody are illegal.33 And if the order committing for further examination is void for want of jurisdiction, it is subject to attack in any court.34 In the absence of a statute, a magistrate, on adjourning a preliminary examination, has no authority to admit accused to bail, but must commit him to the custody of the sheriff.35 By statute in some jurisdictions, however, when a preliminary examination is adjourned, accused may be admitted to bail where the offense charged is a misdemeanor, but not where it is a felony;36 and under some statutes he may be admitted to bail whether the offense is a felony or a misdemeanor.37 It has been held that a justice of the peace may issue a commitment, although previously he has permitted defendant to go home after the decision to hold defendant for trial was pronounced.38

[§ 603] (5) Effect of Determination on Sub

Ind.-State v. Shaw, 4 Ind. 428. Kan.-State v. Fields, 70 Kan. 391, 78 P 833; Redmond v. State, 12 Kan. 172.

Minn.-State v. Sargent, 71 Minn. 28, 73 NW 626.

Miss. Ex p. Burke, 58 Miss. 50. Okl.-Trimble v. Terr., 15 Okl. 620, 86 P 64.

Tex. Donaldson v. State, (Cr.) 55 SW 826.

Utah.-State v. Pay, 45 Utah 411, 146 P 300, AnnCas1917E 173.

Wash.-State v. Newton, 29 Wash. 373, 70 P 31.

See also Reg. v. Brown, [1895] 1 Q. B. 119.

[a] In New York it seems that a committing magistrate has authority, under Code Cr. Proc. § 208, to issue process of commitment for a crime developed on the examination, although not charged in the original warrant. In re Paul, 94 N. Y. 497.

to

[b] Failure of information state elements of offense does not prevent the magistrate from proceeding with the preliminary investigation and committing accused for trial. Rex v. Beaudoin, (Que.) 22 CanCrCas 319.

[c] A different name to designate accused may be given in the commitment from that in the complaint, the latter being fictitious. Peo. v. Wheeler, 73 Cal. 252, 14 P 796.

32. In re Bates, 2 F. Cas. No. 1,099a; U. S. v. Bates, 24 F. Cas. No. 14,544; State v. McConnell, 70 N. H. 158, 46 A 458; Cave v. Mountain, 1 M. & G. 257, 39 ECL 747, 133 Reprint 330.

Adjournment of examination see supra § 572.

[a] Form of commitment for further examination see Ex p. Fletcher, 1 D. & L. 896.

33. Com. V. Maloney, 145 Mass. 205, 208, 13 NE 482: Davis v. Capper, 10 B. & C. 28, 21 ECL 22. 109 Reprint 362, 4 C. & P. 134, 19 ECL 442; Cave v. Mountain, 1 M. & G. 257, 39 ECL 747, 133 Reprint 330.

34. Ex p. Simpson, 3 Ala. A. 222, 57 S 518.

31. Cal.-Peo. v. Wheeler, 73 Cal. 252 14 P 796 (construing Pen. Code $872); Peo. v. Smith, 1 Cal. 9; Hart- 35. State v. Kruise, 32 N. J. L. well's Application, 28 Cal. A. 627, 153 313; State v. Jones, 100 N. C. 438, 6 P 730. SE 655. But compare State v. GaColo.-Peo. v. Mellor, 2 Colo. 705. chenheimer, 30 Ind. 63 (holding that Ga.-Parks v. Nelms, 115 Ga. 242, a justice of the peace has jurisdic

tion to take a recognizance for the appearance of a prisoner at a future time, to answer to a general charge of an offense, so defectively stated in its details that the prisoner might well have objected to the sufficiency of the affidavit).

36. State V. Bartlett, 70 Minn. 199, 72 NW 1067 (holding that a justice of the peace before whom a preliminary examination, under the provisions of Gen. St. [1894] c 106, is in progress, has no authority to admit accused to bail pending an adjournment of the hearing, as provided for in § 7140, where accused is charged with an offense punishable with death or imprisonment in the state prison for a term exceeding seven years).

37. Potter v. Kingsbury, 4 Day (Conn.) 98; Lewis v. Peo., 23 Ill. A. 28.

Jurisdiction to admit to bail see generally Bail §§ 194–211.

[a] In Kentucky (1) the code, as originally adopted, did not authorize an examining court, when defendant was charged with a felony, to admit him to bail prior to or pending the examination (§ 49). Murphy v. Com., 11 Bush (Ky.) 217; Com. v. Moore, 3 Metc. (Ky.) 477. (2) But by an act approved March 8, 1867 (1 Sess. Acts [1867] p 83), the criminal code was so amended as to permit persons charged with any criminal or penal offense, wherein bail is by law allowed, to give bail for their appearance to answer such charge before an examining court. Murphy V. Com.. supra; Com. V. Salyer, 8 Bush (Ky.) 461. (3) Under this statute the magistrate or the judge has no power to admit to bail, where the offense is charged to have been committed in another county, and the statute makes it his duty to "commit the defendant to a peace officer, to be conveyed by him before a magistrate of the county in which the offense is charged to have been committed,' his authority in such case being limited to the inquiry whether there are sufficient grounds for an examination in the county in which the offense was committed. Com. v. Salyer, 8 Bush (Ky.) 461.

38. Gano v. Hall, 42 N. Y. 67 [aff 5 Park. Cr. 651].

sequent Proceedings. Unless otherwise provided by statute, the dismissal of a prosecution on appeal for lack of a proper preliminary examination,39 or the discharge or committal of the accused, on such examination, is no bar to a second preliminary examination or to a subsequent prosecution for the same offense. A fortiori is this true where defendant is discharged on the first arrest without any evidence being produced or offered." But by statute it may be provided that, after discharge on preliminary examination, no further prosecution of the offense shall be had.42 Where a justice of the peace determines that an offense is of such a grade as to be beyond his jurisdiction and binds accused over to a higher court for trial, his determination is not conclusive upon the higher court.43

[604] b. Rehearing or New Examination. In the absence of a statute, the functions of the examining magistrate and his jurisdiction over accused terminate when he commits or remands him, or when he takes his recognizance or admits him to bail;45 and he has no authority to grant a rehearing or new examination.46 If injustice has been done, complete relief can be obtained by a writ of habeas

39. Peo. v. Brock, 64 Mich. 691, 31 NW 585.

40. Ala.-Ex p. Robinson, 108 Ala. 161, 18 S 729; Ex p. Crawlin, 92 Ala. 101, 9 S 334; Boswell v. State, 9 Ala. A. 23, 64 S 188.

Cal.-Ex p. Fenton, 77 Cal. 183, 19
P 267; Ex p. Walsh, 39 Cal. 705.
Ill. In re McIntyre, 10 Ill. 422.
Ind.-State v. Hattabough, 66 Ind.

223.

Kan.-State v. Jones, 16 Kan. 608. Mass.-Com. v. Sullivan, 156 Mass. 487, 31 NE 647.

Mich. Gaffney v. Missaukee County Cir. Judge, 85 Mich. 138, 48 NW 478.

An order of com

corpus from the proper court.47
mittal for trial at once confers jurisdiction of ac-
cused on the trial court,48 and he can be discharged
or released on bail only by a court having power to
entertain a writ of habeas corpus.49

[§ 605] c. Order or Warrant of Commitment and Custody of Accused50-(1) Necessity for and Time of Issuance. A warrant of commitment in writing is in general necessary to the validity of a commitment.51 An oral order for the commitment of a prisoner on a criminal charge does not authorize the officer to detain him.52 Until the commitment can be made out, however, the prisoner may be detained by a verbal warrant;53 nor is any written authority necessary in a commitment for further examination.54 And it seems that, where the court in session orders a commitment, the minute is the authority of the officer, and no writ or copy of the order is necessary.55

[§ 606] (2) Requisites-(a) As to Form-aa. Generally. The commitment must be either in the name of the people or in that of the justice awarding it, the latter being the more usual,56 and must be under the hand of the magistrate.57 In some

hearing and gives bail for his ap- writing and filed with the clerk, that
pearance in the trial court, the jus- it may serve the same purposes as if
tice cannot open the case subse- it had been made by a justice of the
quently on the mere application of peace or returned by him. March
defendant, accept a plea of guilty, v. Com., (Pa.) 14 A 375.
and pass sentence. Com. v. Harbe-
son, 25 Pa. Dist. 109.

47. Butler v. State, 36 Tex. Cr.
483, 38 SW 46. See Habeas Corpus
[21 Cyc 295 et seq].
48. Nelson v. Peo., 38 Mich. 618.
State v. Randolph, 26 Mo. 213.
Commitment after conviction
before magistrate see infra § 667.

49.

50.

51. U. S.-U. S. V. Harden, 10 Fed. 802 [appr Gilbert v. U. S., 23 Ct. Cl. 218]; Erwin v. U. S., 37 Fed. 470,

Nebr.-Garst's Application, 10 2 LRA 229. Nebr. 78, 4 NW 511.

Nev.-Ex p. Oxley, 38 Nev. 379, 149 P 992.

N. Y.-Peo. v. Dillon, 197 N. Y. 254, 90 NE 820, 18 AnnCas 552.

R. I-State v. Munroe, 26 R. I. 38, 57 A 1057.

Tex.-Ex p. Porter, 16 Tex. A. 321. [a] A second preliminary examination by the same magistrate who presided at the first, and who discharged accused, is permitted in some jurisdictions. Rex v. Hannay, (B. C.) 2 West LR 543.

41. Jambor v. State, 75 Wis. 664, 44 NW 963.

42. Morrissey v. Peo., 11 Mich. 327; McCann v. Com., 14 Gratt. (55 Va.) 570.

43. State v. McKettrick, 14 S. C. 346.

[ocr errors]

44. See cases infra note 46. 45. See cases infra note 46. 46. Steel v. Williams, 13 Ind. 73; Sandrock v. Knop, 34 HowPr (N. Y.) 191; Butler v. State, 36 Tex. Cr. 483, 38 SW 46. See also State v. Mousely, 4 Del. 553 (holding that, where defendant has been bound over by one justice to appear in the trial court, another justice cannot thereafter allow the prosecutor to settle the case); Holt v. Com., 4 Ky. Op. 143 (holding that, after hearing all the evidence and entering its judgment as to the probable guilt of defendant, fixing the amount of bail, and committing accused to jail for failure to give bail, the examining court has discharged all its duties, and such jurisdiction terminates and cannot be revived at the mere will of the magistrate); State v. Russell, 24 Tex. 505 (holding that, after the taking of a bail bond by a magistrate, and the adjournment of his court, he has no authority to take another).

[a] Where defendant waives a

Cal.-Peo. v. Wilson, 93 Cal. 377, 28
P 1061.

Ill.-Odell v. Schroeder, 58 Ill. 353.
N. Y.-Gano v. Hall, 42 N. Y. 67
[aff 5 Park. Cr. 651]; Peo. v. Crane,
94 App. Div. 397, 88 NYS 343.

4

Eng. Hutchinson v. Lowndes,
B. & Ad. 118, 24 ECL 61, 110 Reprint
400; Mayhew v. Locke, 7 Taunt. 63,
2 ECL 261, 129 Reprint 25.

[a] General principles relating to
necessity of commitment.-In a state
where the use of local jails for Unit-
ed States prisoners is permitted,
whenever a prisoner is committed to
jail, a copy of the writ of commit-
ment, showing the grounds thereof,
should be left with the jailer. In
case of a proceeding before a judge
or commissioner, in which it is nec-
essary to commit accused to jail to
await a hearing or pending exami-
nation, a writ to commit is neces-
sary, setting forth the cause of de-
tention and why examination is post-
poned. After the hearing and order
committing for trial, a final writ of
commitment is necessary, reciting
the hearing, finding of probable
cause, and that the prisoner is com-
mitted, in default of bail, to await
trial. Where a defendant is arrest-
ed on a bench warrant and brought
before the court, and is committed,
in default of bail, to await trial, the
writ of commitment should state the
cause of detention until a trial can
be had. Erwin v. U. S., 37 Fed. 470,
2 LRA 229.

[b] Commitment during session and at chambers. If a judge of the court of quarter sessions of the peace or of the oyer and terminer of Pennsylvania makes a commitment order during the session of the court, the commitment must be entered upon the minutes by the clerk. If made at chambers, it must be reduced to

52. State v. James, 78 N. C. 455. 53. 1 Chitty, Cr. L. p 73; Hutchinson v. Lowndes, 4 B. & Ad. 118, 24 ECL 61, 110 Reprint 400. See also Gano v. Hall, 42 N. Y. 67 [aff 5 Park. Cr. 651] (where the examination of the prisoner extended late into the night, and the justice, stating that he was too ill to make out the mittimus then, allowed accused to go at large. The next morning the justice issued a warrant of commitment, under which the prisoner was rearrested and imprisoned. It was held, in an action against the justice for false imprisonment, that the warrant was not illegal).

54. Bacon Abr. tit Trespass D 3; Dick. J. Exam. 3; 2 Hale p 130; 1 Archbold Cr. Pr. & Pl. (8th ed) p 134 [cit Moore p 408; 1 Hale p 585]. See also Ex p. Smith, 5 Cow. (N. Y.) 273 (where it was said that a commitment for further examination required no formality, that it might be by verbal warrant, that no crime need be specified, and that accused might be detained in jail for a reasonable time, according to the exigencies of the case).

55. Taintor v. Taylor, 36 Conn. 242, 4 AmR 58 [aff 83 U. S. 366, 21 L. ed. 287] (where it was stated that it is not the practice of the superior court to issue a special order to the clerk for the commitment of prisoners. There is a general continuing order to that effect which the clerk may act upon either during the term or after its close, the mittimus being in the nature of an execution, carrying into effect the judgment of the court); State v. Heathman, Wright (Oh.) 690.

56.

Ex . Rohe, 5 Ark. 104 (holding that the mittimus must run in the name of the state); Matter of Pickett, 55 HowPr (N. Y.) 491; 1 Chitty Cr. L. p 109.

57. Peo. v. Wilson, 93 Cal. 377, 28 P 1061; 1 Archbold Cr. Pr. & Pl. (8th ed) p 149. See also Ex p. Colon, 8 Porto Rico 328. But see Jennings v. State, 13 Kan. 80 (holding that the warrant is the process of the court and should be under the seal of the court and signed by the clerk).

[a] Two justices.-(1) In case the justice to whom the complaint was made associates another justice with him, the commitment should be

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