96 When arrest may be made.

If the crime charged be a felony, the arrest may be made on any day, and at any time of the day or during any night. If it be a misdemeanor, the arrest cannot be made on Sunday, or at night, unless by direction of the magistrate indorsed upon the warrant. Code Crim. Pro., § 170.

8 N. Y. St. R. 230.

97 How made. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. Code Crim. Pro., § 171.

1 Wend. 210.

98 No further restraint than necessary. The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention. Code Crim. Pro., § 172.

99 Officer to state authority and show warrant. The defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant, if required. Code Crim. Pro., § 173.

40 Hun, 477.

100 If defendant resist, officer may use necessary means to arrest. If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest. Code Crim. Pro., § 174.

5 Park. 234.

101 When officer may break open a door or window. The officer may break open an outer or inner door or window of any building, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance. Code Crim. Pro., § 175.

5 C. H. Rec. 141; 21 Abb. N. C. 26, n.

102 Same.

An officer may break open an outer or inner door or window of any building, for the purpose of liberating a person, who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation. Code Crim. Pro., § 176.

1 Hale P. C. 459; 21 Abb. N. C. 27, n.

Arrest by an Officer, without a Warrant.

103 When allowed. A peace officer may, without a warrant, arrest a person, 1. For a crime, committed or attempted in his presence;

2. When the person arrested has committed a felony, although not in his presence;

3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it. Code Crim. Pro., § 177. 12 N. Y. Supp. 311; 2 Hun, 479; 2 T. & C. 19; 7 N. Y. Leg. Obs. 89; 40 N. Y. 463; 1 Rob. 555; 2 Daly, 220; 5 C. H. Rec. 141; 1 Wh. Cr. Cas. 137; 41 N. Y. Super. 107: 7 Daly, 142; 3 Keyes, 568; 22 Hun, 300; 5 C. H. Rec. 95; 40 Hun, 477, 478: 21 Abb. N. Č. 27, n.; 141 N. Y. 185; 74 Hun, 368; 75 id. 278; 25 Abb. N. C. 398; 36 N. Y. St. R. 54; 56 id. 305, 831; 58 id. 227; 13 N. Y. Supp. 222; 35 id. 233.

104 May break in, if admittance refused. To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a building, if, after notice of his office and purpose, he be refused admittance. Code Crim. Pro., § 178.

21 Abb. N. C. 27, n.

105 May arrest at night for felony on reasonable belief of guilt. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterward appear that a felony had been committed, but that the person arrested did not commit it. Code Crim. Pro., § 179.

8 N. Y. Supp. 370.

106 When to state authority, and cause of arrest. When arresting a person without a warrant the officer must inform him of the authority of the officer and the cause of the arrest, except when the person arrested is in the actual commis

sion of a crime, or is pursued immediately after an escape. Code Crim. Pro., $ 180.

107 May take a person arrested by a bystander for breach of the peace. A peace officer may take before a magistrate, a person, who, being engaged in a breach of the peace, is arrested by a bystander and delivered to him. Code Crim. Pro., § 181.

108 Offenses committed in magistrate's presence. When a crime is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest. Code Crim. Pro., § 182.

5 C. H. Rec. 95; 2 Hun, 479; 5 T. & C. 19; 67 Barb. 550.

Arrest by a Private Person.

109 When allowed. A private person may arrest another,

1. For a crime, committed or attempted in his presence;

2. When the person arrested has committed a felony, although not in his presence. Code Crim. Pro., § 183.

4 C. H. Rec. 111; 11 Johns. 486; 3 Wend. 350; 17 How. Pr. 100; 3 Park. 249; 40 N. Y. 463; 1 Rob. 555; 2 City Ct. 240, n.; 75 Hun, 278; 76 id. 390; 36 N. Y. St. R. 54; 47 id. 385; 58 id. 227; 6 N. Y. Supp. 763; 13 id. 224; 19 id. 913.

110 Must inform party of the cause of arrest, except when actually committing offense or on pursuit. A private person before making an arrest, must inform the person to be arrested of the cause thereof, and require him to submit, except when he is in the actual commission of the crime, or when he is arrested on pursuit immediately after its commission. Code Crim. Pro., § 184.

6 N. Y. Supp. 763.

111 Must immediately take prisoner before a magistrate, or deliver him to & peace officer. A private person, who has arrested another for the commission of a crime, must, without unnecessary delay, take him before a magistrate, or deliver him to a peace officer. Code Crim. Pro., § 185.

For earlier laws on this subject see Birdseye's Chronological Table of Statutes, under L 1787, c. 26; L. 1801, Revised Acts, c. 28 (1 K. & R., pp. 209, 210), and c. 31 (p. 218), 1 R. L. 1813, c. 31, p. 149, and c. 67, pp. 423, 424; also see 2 R. S. 348-351.

In what Cases the Defendant may be Admitted to Bail.

112 By whom bail may be taken before examination. When the defendant is held to appear for examination, bail for such appearance may be taken either, 1. By the magistrate who issued the warrant or before whom the same is returnable; or,

2. By any judge of the supreme court. Code Crim. Pro., § 550.

113 Taking bail defined. The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. Code Crim. Pro., § 551.

8 Barb. 158; 1 Wh. Cr. Cas. 434; 6 Abb. N. C. 33; 10 Wend. 465.

114 Offenses not bailable. The defendant can not be admitted to bail except by a justice of the supreme court where he is charged:

1. With a crime punishable with death.

2. With the infliction of a probably fatal injury upon another, and under such circumstances, as that, if death ensue, the crime would be murder. Code Crim. Pro., § 552, as am'd L. 1895, c. 880.

10 N. Y. Leg. Obs. 298; 8 Barb. 168, n.; 2 Park. 570: 8 Barb. 158; 6 Park. 695; 4 Abb. N. S. 280; 3 Park. 316; 10 How. 567; 20 How. 111; 6 Abb. N. C. 33.

115 In case of other crimes. If the charge be for any other crime, he may be admitted to bail, before conviction, as follows:

1. As a matter of right, in cases of misdemeanor;

2. As a matter of discretion, in all other cases. Code Crim. Pro., § 553.

2 N. Y. Supp. 39; 5 Cow. 39; 5 C. H. Rec. 11; 8 Barb. 158; 3 How. 251; 4 Park. 651.

116 Bail. Before conviction, a defendant may be admitted to bail:

1. For his appearance before the magistrate on the examination of the charge, before being held to answer.

2. To appear at the court to which the magistrate is required by section two hundred and twenty-one to return the depositions and statements upon the defendant being held to answer after examination.

3. After indictment, either upon the bench warrant issued for his arrest or upon an order of the court committing him or enlarging the amount of bail, or upon his being surrendered by his bail, to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial. And any captain or sergeant of police, or acting sergeant of police, in any city or village of this state, must take bail for his appearance before a competent and accessible magistrate the next morning from any person arrested for a misdemeanor between eleven o'clock in the morning and eight o'clock the next morning, just as soon as the person offers himself as bail for the person or persons arrested. When such captain or sergeant of police or acting sergeant of police takes bail, he must take it by an undertaking in the form in this section mentioned, executed in his presence by the defendant and at least one surety, who must justify under oath, or by the personal undertaking of the defendant, secured by the deposit of money or personal property accompanied by an oath of ownership, in the cases and in such manner as hereinafter provided; and for these purposes the officer may administer all necessary oaths. The amount of bail taken by a captain or sergeant of police or acting sergeant of police, under this section, must be as follows: If the offense be the violation of a corporation ordinance, the amount of the bail must be one hundred dollars, except that if a conviction upon the charge would render the defendant liable only for a fine, the amount of the bail must be double the largest fine that could be imposed; if the conviction would render him liable to imprisonment for thirty days or less, the amount of the bail must be two hundred dollars. In all other cases the amount of bail must be five hundred dollars. In lieu of a bondsman, if the offense be the violation of a corporation ordinance where conviction renders the defendant liable to a fine only, he may give his personal undertaking, secured by a deposit with such captain or sergeant of police, or acting sergeant of police, of money or of personal property equal in value to double the largest fine that can be imposed. If personal property, the person making or authorizing the deposit shall take and subscribe an oath that he is the owner thereof, and authorized to make such deposit. A false oath in this particular is declared to be perjury and punishable accordingly. Money or personal property thus deposited conveniently transportable shall be taken to the court, by the officer making the arrest, at the time defendant is required to appear and, upon the conditions of the undertaking being satisfied, it shall be restored to the defendant. If the deposit be personal property, which can not conveniently be brought to court, the defendant shall be entitled to an order from the magistrate directing the delivery thereof to the owner after the conditions of the undertaking have been satisfied. The form of the undertaking, with surety, must be as follows:

We, A B, defendant, and residing at C D, surety, residing at

, hereby jointly and severally undertake that the above A B, defendant, shall appear and answer the complaint (describing it briefly) before the magistrate before whom he would be arraigned if not bailed on the day of eighteen hundred and ninety and at o'clock, to answer to the complaint, and there remain to answer, subject to an order of the magistrate, and render himself in execution thereof, or if he fail to perform either of these conditions, then we will pay to the people of the state of New York the sum of

dollars.

of

The form of the personal undertaking, with deposit, shall be as follows:
I, A B, defendant, residing at number

street, in the .

hereby personally undertake and agree, that I will appear and answer to the complaint of violating the ordinances of the corporation of to wit: (here briefly state charge) before the magistrate would be arraigned if not bailed, on the eighteen hundred and ninety

before whom I of

o'clock in the

at

day

noon, to answer to the complaint, and there remain to answer, subject to any order of the magistrate, and render myself in execution thereof, or if I fail to perform either of these conditions, then I will pay to the people of the state of New York the sum of dollars, to secure which payment there has been deposited herewith (if money, state amount; if personal property, briefly describe).

being duly sworn says, that he is the owner

of the personal property, mentioned and described in the foregoing undertaking and is authorized to, and hereby does, pledge and deposit the same, as security for the appearance of the defendant to answer the complaint made against him. Subscribed and sworn to before me,

2 Abb. N. S. 204; 3 Park. 316; 5 Cow. 39; 4 Park. 651; 14 Hun, 90.

117 When bail taken after conviction. After the conviction of a crime not punishable with death, a defendant who has appealed, and when there is a stay of proceedings, but not otherwise, may be admitted to bail:

1. As a matter of right, when the appeal is from a judgment imposing a fine only;

2. As a matter of discretion, in all other cases. Code Crim. Pro., § 555.

Col. & C. Cas. 175; 2 Barb. 450; 60 id. 480; 1 Edm. 270; 8 Misc. 159; 60 N. Y. St. R. 149. 149.

118 Same: condition of undertaking. After conviction and upon an appeal, the defendant may be admitted to bail, as follows:

1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal be dismissed;

2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed. Code Crim. Pro., § 556.

3 N. Y. Cr. R. 454, 457.

Bail upon being Held to Answer, before Indictment.

119 Who may admit to bail. When the defendant has been held to answer, as provided in section two hundred and eight* the admission to bail may be by the magistrate by whom he is so held, if he be one of the magistrates mentioned in section one hundred and forty-seven, and the crime charged is a misdemeanor, or a felony punishable with imprisonment, not exceeding five years; or if he be a judge of the supreme court; or any judge authorized to preside in a court having jurisdiction to try indictments, in all cases where bail may be taken, before conviction, as provided in section five hundred and fifty-four. Code Crim. Pro., § 557, as am'd L. 1882, c. 360.

6 Hill, 344; 30 Barb. 300; 21 How. 85; 53 id. 515.

120 Same. When, by reason of the degree of the crime, the committing magistrate has not authority to admit to bail, the defendant may be admitted to

* Commitment, § 21.

bail by one of the officers having authority to admit to bail in the case, as provided in the second subdivision of the last section, or by the court to which the depositions and statements are returned by the committing magistrate, as provided in section 221* if the case be triable therein, or if not, by the court to which, after indictment, it may be sent or removed for trial. Code Crim. Pro., § 558. 121 Same: before and after return of depositions, etc., to court. The defendant may be admitted to bail by a magistrate, as provided in the last two sections, upon being held to answer, or at any time before the return of the depositions and statement, to the court. After that time he can be admitted to bail, only by a judge presiding in the court in which the crime is triable, if it be sitting, or if not, by one of the magistrates mentioned in the second subdivision of section 557. Code Crim. Pro., § 559.

2 Abb. N. S. 204; 77 N. Y. 39; 26 N. Y. Supp. 331.

122 Notice to district attorney and committing magistrate, when required; transmission of papers. In the several cities of this state, if the crime charged be a felony, the application for admission to bail must be upon notice of at least two days, to the district attorney of the county, unless the magistrate by order fixes a shorter time; and the committing magistrate, upon the like notice, in writing, requiring him to do so, must transmit the depositions and statement, or a copy thereof, to the court or magistrate to whom the application for bail is to be made. Code Crim. Pro., § 560.

123 Form of order made by the court. If the application be to the court, an order must be made, granting or denying it, and if it be granted, stating the sum in which bail may be taken. Code Crim. Pro., § 561.

124 Form of certificate made by a magistrate; filing. If the application be to a magistrate, he must certify, in writing, his decision granting or denying the same; and if he grant the application, must state in the certificate the sum in which bail may be taken; which certificate he must cause to be forthwith filed with the clerk of the court to which the depositions and statement are required to be sent. Code Crim. Pro., § 562.

125 More than one application. If an application for admission to bail, made to a magistrate, be denied, not more than two subsequent applications therefor can be made to other magistrates, except that an application can be made to any magistrate mentioned in subdivision two of section 557, if no application has been previously made to a magistrate mentioned therein. Code Crim. Pro., § 563.

3 Park. 520, 531.

126 Violation of last section. A violation of the last section is punishable as a misdemeanor, and the admission of the defendant to bail contrary thereto may be revoked by the magistrate who made it, or vacated by the court to which the depositions and statement are or must be sent, as provided in section 221,* or to which, after indictment, the action must be sent for trial. Code Crim. Pro., § 564.

127 Construction of last two sections. The provisions of the last two sections shall not be construed to limit the power of any judge presiding in the court in which the offense is triable to let the defendant to bail. Code Crim. Pro., & 565.

128 When decision final. The decision of the judge presiding in the court in which the crime is triable, granting or denying bail, is final, except as provided in section 563. Code Crim. Pro., § 566.

129 Bail, by whom taken. If the defendant be admitted to bail by a magistrate, the bail must be taken by the magistrate granting the order, unless the order shall specify that the same may be taken by some other designated magistrate. Code Crim. Pro., § 567.

130 How put in; form of undertaking. Bail is put in by a written undertaking executed by sufficient surety [with or without the defendant, in the dis

* Commitment, § 34.