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53 Examination. When the information is laid before a magistrate, he must examine on oath the complainant and any witnesses he may produce, and must reduce their examinations to writing, and cause them to be subscribed by the parties making them. Code Crim. Pro., § 85.

17 Wend. 181; 23 id. 638; 66 Hun, 230.

54 Warrant. If it appear from such examinations that there is just reason to fear the commission of the crime threatened, by the person complained of, the magistrate must issue a warrant, directed generally to the sheriff of the county, or any constable, marshal or policeman of the city or town, reciting the substance of the information, and commanding the officer forthwith to arrest the person complained of, and bring him before the magistrate. Code Crim. Pro., § 86.

1 C. H. Rec. 164; 17 Wend. 181; 23 id. 638; 66 Hun, 230. 55 Trial.

When the person complained of is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing, and subscribed by the witnesses. Code Crim. Pro., § 87.

2 N. Y. Cr. R. 54, 55; 66 Hun, 230.

56 Discharge. If it appear that there is no just reason to fear the commission of the crime alleged to have been threatened, the person complained of must be discharged. Code Crim. Pro., § 88.

2 N. Y. Cr. R. 54; 66 Hun, 230.

57 Security to keep the peace, when required. If, however, there be just reason to fear the commission of the crime, the person complained of may be required to enter into an undertaking, in such sum, not exceeding one thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to abide the order of the next court of sessions of the county, and in the meantime to keep the peace towards the people of this state, and particularly towards the complainant. Code Crim. Pro., § 89.

1 C. H. Rec. 164; 2 N. Y. Cr. R. 54; 10 Barb. 399; 2 Yeates, 437; 13 Johns. 383; 19 Abb. Pr. 269; 66 Hun, 230.

58 Effect of giving or refusing security. If the undertaking required by the last section be given, the party complained of must be discharged. If it is not given, the magistrate must commit him to prison, specifying in the warrant, the cause of commitment, the amount of security required, and the omission to give the same. Code Crim. Pro., § 90.

17 Wend. 181; 23 id. 638; 19 Abb. Pr. 269; 5 Park. 651; 42 N. Y. 67.

59 Person committed, how discharged. If the person complained of be committed for not giving security, he may be discharged by any two justices of the peace of the county, or police or special justices of the city, upon giving the security. Code Crim. Pro., § 91.

60 Undertaking to be transmitted to county court. An undertaking given as provided in section eighty-nine, must be transmitted by the magistrate to the next term of the county court of the county. Code Crim. Pro., § 92, as am'd L. 1895, c. 880.

61 Security for assault, etc., in presence of court or magistrate. A person, who, in the presence of a court or magistrate, assaults or threatens to assault another, or to commit a crime against his person or property, or who contends with another in angry words, may be thereupon ordered by the court or magistrate, to give security as provided in section 89, or if he refuses to do so, may be committed as provided in section 90. Code Crim. Pro., § 93.

10 Johns. 393.

62 Appearance of party bound, etc. A person who has entered into an undertaking to keep the peace, must appear on the first day of the next term of the county court of the county. If he do not, the court may forfeit his undertaking, and order it to be prosecuted, unless his default be excused. Code Crim. Pro., § 94, as am'd L. 1895, c. 880.

63 Discharge, if complainant does not appear. If the complainant do not appear, the person complained of may be discharged, unless good cause to the contrary be shown. Code Crim. Pro., § 95.

64 Proceedings on appearance of both parties. If both parties appear, the court may hear their proofs and allegations, and may either discharge the undertaking, or require a new one, for a time not exceeding one year. Code Crim. Pro., § 96.

65 Undertaking, when broken. An undertaking to keep the peace is broken, on the failure of the person complained of to appear at the county court, as provided in section ninety-four, or upon his being convicted of any crimes involving a breach of the peace. Code Crim. Pro., § 97, as am'd L. 1895, c. 880.

66 Undertaking, when and how prosecuted. Upon the district attorney producing evidence of such conviction to the county court to which the undertaking is returned, that court must order the undertaking to be prosecuted; and the district attorney must thereupon commence an action upon it in the name of the people of this state. Code Crim. Pro., § 98, as am'd L. 1895, c. 880.

2 N. Y. Cr. R. 54.

67 Security not required except according to this chapter. Security to keep the peace or be of good behavior, cannot be required, except as prescribed in this chapter. Code Crim. Pro., § 99.

23 Wend. 47: 5 Barb. 205; 64 How. Pr. 285.

68 Security by convicts. Every court of criminal jurisdiction, before which any person shall be convicted of any criminal offense, not punishable with death or imprisonment in the state prison, shall have power, in addition to such sentence as may be prescribed or authorised by law, to require such person to give security to keep the peace, or to be of good behaviour, or both, for any term not exceeding two years, or to stand committed until such security be given. But this section shall not extend to convictions for writing or publishing any libel; nor shall any such security be hereafter required by any court, upon any complaint, prosecution or conviction, for any such writing or publishing. 2 R. S. 737, § 1.

69 When forfeited. No recognizance given under the last section, shall be deemed to be broken, unless the principal therein be convicted of some offence amounting in judgment of law, to a breach of such recognizance. 2 R. S. 738, § 2.

70 Proceedings thereon. The same proceedings for the collection of such recognizance when forfeited, shall be had as are prescribed in the first title of this chapter,* in relation to the recognizances to keep the peace. Id., § 3. §§ 4, 5, 6 and 7 repealed by L. 1886, c. 593, § 1, par. 4 (2).

71 Information defined. trate, that a person has been § 145.

The Information.

The information is the allegation made to a magisguilty of some designated crime. Code Crim. Pro.,

46 Hun, 667, 671: 66 id. 230: 6 Misc. 568; 45 N. Y. St. R. 411; 48 id. 813; 5 N. Y. Supp. 240; 20 id. 913; 37 id. 702.

72 Magistrate defined. A magistrate is an officer, having power to issue a warrant for the arrest of a person charged with a crime. Code Crim. Pro., § 146.

6 Misc. 568; 45 N. Y. St. R. 411; 5 N. Y. Supp. 240; 18 id. 668.

73 The following persons are magistrates:

1. The justices of the supreme court.

2. The judges of any city court.

3. The county judges and special county judges.

The title referred to was superseded by Code Crim. Pro., §§ 84-89 (this subject, §§ 52-67), and was repealed by L. 1886, c. 593.

4. The city judge of the city of New York, and the judges of the court of general sessions in the city and county of New York.

5. The justices of the peace.

6. The police and other special justices appointed or elected in a city, village

or town.

7. The mayors and recorders of cities. But in the city of New York, the only magistrates authorized to commit children to institutions, are the justices of the supreme court, the recorder, the city judge of the city of New York, and judges authorized to hold the court of general sessions, and the police justices. Code Crim. Pro., § 147, as am'd L. 1892, c. 279, § 1.

38 Hun, 180; 91 N. Y. 241, 248; 2 Abb. N. C. 172; 4 N. Y. Cr. R. 215; 20 Civ. Pro. 351; 59 Hun, 304; 36 N. Y. St. R. 574; 38 id. 343; 5 N. Y. Supp. 240; 13 id. 22; 14 id. 569; 18 id. 668.

The Warrant of Arrest.

74 Examination of the prosecutor, etc. When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. Code Crim. Pro., § 148.

3 N. Y. Cr. R. 90; 7 N. Y. St. R. 145; 74 Hun, 323; 75 id. 278; 48 N. Y. St. R. 206; 56 id. 313; 58 id. 227; 5 N. Y. Supp. 240; 10 id. 199.

75 Depositions, what to contain. The depositions must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant. Code Crim. Pro., § 149.

11 Abb. N. C. 122; 41 Hun, 269; 7 N. Y. St. R. 145. 76 When warrant of arrest may be issued. If the magistrate be satisfied therefrom, that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest. Code Crim. Pro., § 150.

49 Barb. 89; 6 How. Pr. 110; 7 How. Pr. 399; 21 Wend. 553; 7 N. Y. St. R. 145; 2 N. Y. Supp. 611; 24 id. 974.

77 Form of warrant. A warrant of arrest is an order in writing in the name of the people, signed by a magistrate commanding the arrest of the defendant, and may be substantially in the following form, the blanks being properly filled: "County of (

).

"In the name of the people of the state of New York, to any peace officer in the ( ).

"Information upon oath, having been this day laid before me that the crime ) has been committed and accusing (

of (

) thereof,

"You are, therefore, commanded forthwith to arrest the above named ( and bring him before ( "Dated at (

),

), at (

), this

). day of

18

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The warrant must direct that the defendant be brought before the magistrate issuing the warrant; or, if the offense was committed in another town, and is one which a court of special sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought before a magistrate of the town in which the offense was committed. Code Crim. Pro., § 151, as am'd L. 1882, c. 360, L. 1893, c. 458, and L. 1895, c. 880. 46 Hun, 671; 75 id. 278; 76 id. 7; 58 N. Y. St. R. 227; 2 N. Y. Supp. 611; 9 id. 685; 24 id. 974.

78 Description of defendant and the offence; date, signature, etc. The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name. It must also state an offense in respect to which the magistrate has authority to issue the warrant,

and the time of issuing it, and the city, town or village where it is issued, and be signed by the magistrate with his name of office. Code Crim. Pro., § 152. 5 Barb. 465; 9 Wend. 62; 49 Barb. 89; 2 Abb. Pr. 468; 39 Hun, 477; 9 N. Y. Supp. 685. 79 How to be directed and executed. The warrant must be directed to, and

executed by, a peace officer. Code Crim. Pro., § 153.

6 Barb. 654; 4 Park. 45; 51 Barb. 546.

80 Who are peace officers. A peace officer is a sheriff of a county, or his under-sheriff or deputy, or a constable, marshal, police constable or policeman of a city, town or village. Code Crim. Pro., § 154, as am'd L. 1882, c. 360.

144 N. Y. 448; 70 Hun, 545; 53 N. Y. St. R. 611; 63 id. 733; 24 N. Y. Supp. 373. See also Animals, § 68.

81 Warrant issued by certain judges. If the warrant be issued by a justice of the supreme court, recorder, city judge or judge of a court of general sessions in the city and county of New York, or by a county judge or by the recorder of a city, where jurisdiction is conferred by law upon such recorder or by a judge of the city court, it may be directed generally to any peace officer in the state, and may be executed by any of those officers to whom it may be delivered. Code Crim. Pro., § 155, as am'd L. 1882, c. 360, and L. 1895, c. 880.

45 N. Y. St. R. 411; 18 N. Y. Supp. 668.

82 By other magistrates; indorsement for execution in another county. If it be issued by any other magistrate, it may be directed generally to any peace officer in the county in which it is issued, and may be executed in that county; or if the defendant be in another county, it may be executed therein, upon the written direction of a magistrate of such other county indorsed upon the warrant, signed by him with his name of office, and dated at the city, town or village where it is made, to the following effect: "This warrant may be executed in the county of Monroe" [or as the case may be.] Code Crim. Pro., § 156, as am'd L. 1882, c. 360.

45 N. Y. St. R. 411; 18 N. Y. Supp. 668.

83 Same: when not to be made; exemption of indorsing magistrate from liability. The indorsement mentioned in the last section cannot, however, be made, unless upon the oath of a credible witness, in writing, indorsed on or annexed to the warrant, proving the handwriting of the magistrate by whom it was issued. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued. Code Crim. Pro., § 157.

84 Arrest for felony; before whom prisoner to be taken. If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 164. Code Crim. Pro., § 158.

30 How. Pr. 202; 77 N. Y. 39; 41 Hun, 188, 193; 2 N. Y. Supp. 611; 24 id. 974. 85 Arrest for misdemeanor; before whom prisoner may be bailed. If the crime charged in the warrant be a misdemeanor, and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit the defendant to bail, for his appearance before the magistrate named in the warrant, and take bail from him accordingly. Code Crim. Pro., § 159.

30 How. Pr. 202; 77 N. Y. 39.

86 Proceedings on taking bail. On taking bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and, without delay, deliver the warrant and undertaking to the magistrate before whom the defendant is required to appear. Code Crim. Pro., § 160.

87 If, on the admission of the defendant to bail, as provided in section one hundred and fifty-nine, bail be not forthwith given, the officer must take the

defendant before a magistrate as directed by the warrant, or some other magistrate in the same town or county, as provided in section one hundred and sixtyfour. Code Crim. Pro., § 161, as am'd L. 1893, c. 458.

2 N. Y. Supp. 611; 24 id. 974.

88 Prisoner carried from county to county. An officer who has arrested a defendant on a criminal charge, in any county, may carry such prisoner through such parts of any county or counties, as shall be in the ordinary route of travel from the place where the prisoner shall have been arrested, to the place where he is to be conveyed and delivered under the process, by which the arrest shall have been made; and such conveyance shall not be deemed an escape. Code Crim. Pro., § 162.

9 Wend. 204.

89 Privileges and powers of officers. While passing through such other county or counties the officers having the prisoner in their charge shall not be liable to arrest on civil process; and they shall have the like power to require any citizen to aid in securing such prisoner, and to retake him if he escapes, as if they were in their own county; and a refusal or neglect to render such aid shall be an offense, in the same manner, as if they were officers of the county where such aid shall be required. Code Crim. Pro., § 163.

See post, § 95.

90 When, by the preceding sections of this chapter, the defendant is required to be taken before the magistrate who issued the warrant, or before a magistrate of the town in which the offense was committed, he may, if that magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the town in which the magistrate before whom the warrant is returnable resides, if there be such a magistrate accessible and qualified to act, and otherwise, before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate the warrant, with his return indorsed and subscribed by him. Code Crim. Pro., § 164, as am'd L. 1893,

c. 458.

30 How. Pr. 202; 77 N. Y. 39; 41 Hun, 193; 76 id. 7; 2 N. Y. Supp. 611; 24 id. 974.

91 Defendant in all cases to be taken before a magistrate without delay. The defendant must in all cases be taken before the magistrate without unnecessary delay, and he may give bail at any hour of the day or night. Code Crim. Pro., § 165, as am'd L. 1882, c. 360, and L. 1887, c. 694.

16 Barb. 303; 48 id. 101; 10 Wend. 514; 9 Misc. 547; 62 N. Y. St. R. 205.

92 Magistrate other than the one who issued warrant. If the defendant be taken before a magistrate other than the one who issued the warrant, the depositions on which the warrant was granted must be sent to that magistrate, or if they cannot be procured, the prosecutor and his witnesses must be summoned to give their testimony anew. Code Crim. Pro., § 166.

Arrest by an Officer, under a Warrant.

93 Arrest defined. Arrest is the taking of a person into custody that he may be held to answer for a crime. Code Crim. Pro., § 167.

26 Hun, 648.

94 Who may arrest. An arrest may be,

1. By a peace officer, under a warrant;

2. By a peace officer, without a warrant; or

26 N. Y. Supp. 1007.

3. By a private person. Code Crim. Pro., § 168.

26 Hun, 648; 40 id. 477; 75 id. 278; 58 N. Y. St. R. 227.

95 Every person bound to aid. Every person must aid an officer in the execution of a warrant, if the officer require his aid and be present and acting in its execution. Code Crim. Pro., § 169.

10 Johns. 85; 10 Wend. 137.

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