ARTICLE VIII.

RE-COMMITMENT OF THE DEFENDANT, AFTER HAVING GIVEN BAIL,

OR DEPOSITED MONEY INSTEAD OF BAIL.

663. Defendant may be arrested in any county.

664. If for failure to appear for judgment, defendant must be committed. 665. If for other cause, he may be admitted to bail.

666. Bail in such case, by whom taken.

667. Form of the undertaking.

668. Qualifications of bail, and how put in.

The principle feature of this chapter, which is new, is the provision contained in section 661, authorising the re-commitment of the defendant, when it appears that his bail or either of them are dead, or insufficient, or have removed from the state. It is more than doubtful whether this power now exists. In a recent case in the city of New-York, where an application for a re-commitment was made, upon a ground similar in principle, the objection was taken, that the court could not make the order, having exhausted its jurisdiction in this respect by taking bail; and Rex v. Salter, 2 Chit. Rep. 109, was cited as sustaining the objection. The necessity of such a power is apparent. It would be a reproach to the administration of criminal justice, that where a fraud had been practiced upon the court in the matter of bail, or where, without the power to re-commit, the defendant might elude the consequences of erime, the court should be left without authority to prevent the wrong.

The other provisions of this chapter sufficiently explain themselves.

§661. The court to which the committing magistrate returns the depositions and statement, or in which an indictment or an appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes, direct the arrest of the defendant, and his commitment to the officer to whose custody he was committed at the time

he was admitted to bail, and his detention, until legally discharged, in the following cases:

1. When, by reason of his failure to appear, he has incurred a forfeiture of his bail, or of money deposited instead thereof, as provided in section 655:

2. When it satisfactorily appears to the court that, his bail, or either of them, are dead, or insufficient, or have removed from the state:

3. Upon an indictment being found, in the cases provided in section 323.

§ 662. The order for the re-commitment of the defendant must recite, generally, the facts upon which it is founded, and direct that the defendant be arrested by any sheriff, constable, marshal or policeman in this state, and committed to the officer to whose custody he was committed, at the time he was admitted to bail, to be detained until legally discharged.

§ 663. The defendant may be arrested pursuant to the order, upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest; except, that when arrested in another county, the order need not be endorsed by a magistrate of that county.

§ 664. If the order recite, as the ground upon which it is made, the failure of the defendant to appear for judgment upon conviction, the defendant must be committed, according to the requirement of the order.

§ 665. If the order be made for any other cause, and the offence be bailable, the court may fix the amount of bail, and may direct in the order, that the defendant be admitted to bail in the sum fixed, which must be specified in the order.

§ 666. When the defendant is admitted to bail, the bail may be taken by any magistrate in the county, having authority, in a similar case, to admit to bail upon the holding of the defendant to answer before indictment, as prescribed in sections 618 and 619, or by any other magistrate to be designated by the court.

§ 667. When bail is taken upon the re-commitment of the defendant, the undertaking of bail must be in substantially the following form:

day of

"An order having been made on the 1850, by the court of (naming the court,) that A. B., be admitted to bail in the sum of dollars, in an action pending in that court against him in behalf of the people of the state of New-York, upon an [information presentment, indictment, or appeal, as the case may be,]

We, C. D., of [stating his place of residence and occupation,] and E. F., of [stating his place of residence and occupation,] hereby undertake, that the above named A. B., shall appear in that or any other court, in which his appearance may be lawfully required, upon that [information, presentment, indictment or appeal, as the

case may be,] and shall at all times render himself amenable to its orders and process, and appear for judgment, and surrender himself in execution thereof; or if he fail to perform either of these conditions, that we will pay to the people of the state of New-York the sum of dollars," [inserting the sum in which the

defendant is admitted to bail.]

§ 668. The bail must possess the qualifications, and must be put in, in all respects, in the manner prescribed by sections 631 to 639, both inclusive.

CHAPTER II.

COMPELLING THE ATTENDANCE OF WITNESSES.

SECTION 669. Subpoena, defined.

670. Magistrate may issue subpœnas, on information or presentment. 671. District attorney may issue subpoenas for witnesses before grand

jury.

672. He may also issue subpoenas, for the people, on trial of an indictment. 673. Clerk may issue blank subpœnas, for witnesses for defendant, on trial. 674. Form of subpœna.

675. Requirement in subpoena, to produce books, papers and documents. 676. Subpoena, by whom served.

677. How served.

678, 679. Payment of expenses of witness, when he is from without the county, or is poor.

680. Witnesses residing or served with subpœna, out of the county, when and how compelled to attend.

681. Disobedience to subpœna, or refusal to be sworn or to testify, how

punished.

682. Witness for defendant, disobeying a subpoena, to forfeit fifty dollars.

$669. The process by which the attendance of a witness, before a court or magistrate is required, is a subpœna.

§ 670. A magistrate, before whom an information is laid, or to whom a presentment of a grand jury is sent,

may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the people or of the defendant.

The power contained in this section, is not now expressly conferred, but is indispensably necessary.

§ 671. The district attorney of the county may issue subpoenas, subscribed by him, for witnesses within the state, in support of the prosecution or for such other witnesses as the grand jury may direct, to appear before the grand jury, upon an investigation pending before them.

§ 672. The district attorney may, in like manner, issue subpœnas subscribed by him, for witnesses within the state, in support of an indictment, to appear before the court at which it is to be tried.

The power of the district attorney, as it now exists, to issue subpoenas, is conferred by the section of the revised statutes, which provides, that "the district attorney of every county, shall have power to issue subpoenas for witnesses in support of any prosecution, to appear at any court, without the seal of such court; and every such subpoena, subscribed by the district attorney issuing the same, shall be as valid and effectual, as if the seal of the court, at which any witness named therein, is required to appear, had been affixed thereto." 2 R. S. 3d. ed. 815, sec 64.

The last two sections extend this power, to the case of witnesses before the grand jury, as well as before the court; and in the former case, make it the duty of the district attorney to issue subpoenas to witnesses, not merely on the part of the people, but to such other witnesses as the grand jury may direct. This provision is in accordance with sec. 261, p. 130.