is not examinable in any other court than the one by which it was awarded. This rule is especially applicable on habeas corpus. But the rule is subject to the qualification that the conduct charged as constituting the contempt, must be such that some degree of delinquency or misbehavior can be predicated of it, for if the act be plainly indifferent or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjugded so.1

SECTION XXXI.

GAMBLING.

If an affidavit shall be filed with the magistrate or police justice of any town or city, before whom complaint shall have been made of an offence against any of the provisions of the act to suppress gambling, stating that the affiant has reason to believe and does believe that the person so charged in such complaint has upon his person, or at any other place named in such affidavit, any specified articles of personal property, or any gambling table, device or apparatus, or any lottery policies, public or private, the discovery of which might lead to establish the truth of such charge, the said magistrate or justice may, in his discretion, by warrant command the officer, who is authorized to arrest the person so charged, to make diligent search for such property and table, device or apparatus, and if found, to bring the same before such magistrate or justice; and the officer so seizing shall deliver the same to the magistrate or justice before whom he takes the same, who shall retain possession of said property and be responsible therefor until the discharge or commitment, or letting to bail of the person so charged; and in case of such commitment or letting to bail of the person so charged, such officer shall retain such property, subject to the order of the court before which such offender may be required to appear, until his discharge or conviction; and in case of the conviction of such person, the gambling table, device or apparatus shall be destroyed, and the household property and other fixtures belonging to such gambling place shall be held liable to be sold to pay 1 Peo. v. Kelly, 24 N. Y., 74.

any judgment and costs which may be rendered against such person, and after the payment of such judgment and costs the surplus, if any, shall be paid into the treasury of the county where such prosecution shall take place; and in the case of the discharge of such person by the magistrate or court, the officer having such property in his custody shall, on demand, deliver it to such person. It is lawful for any justice of the peace, police justice, chief magistrate of any municipal corporation or judge of any court of record, upon complaint upon oath that any gambling tables, apparatus, establishment, or device is kept by any person for the purpose of being used to win or gain money or other property, or by any other person, or any lottery policies of any lotteries, to issue his warrant commanding any sheriff or constable to whom the same shall be directed, within the proper jurisdiction, after demanding entrance, to break open and enter any house or place wherein such gambling table, establishment, apparatus or device shall be kept, and to seize and deliver the same to the mayor of the city, president of the village, supervisor of the town, or clerk of the county where such seizure shall be made, who shall keep the same until the term of the court at which the case shall be tried, and the court shall then, if there be no necessity of keeping the property to be produced on the trial of an offender against this act, have a jury sworn to try the fact whether the property taken was or is used for gambling, and if the finding shall be that the property was used for gambling the court shall order such property to be broken up and sold by the sheriff of the county, and the proceeds shall, after the payment of costs, go into the treasury of the county for the use of the common schools therein, in the manner as is provided in said act.2

SECTION XXXII.

OTHER SUMMARY CONVICTIONS.

In addition to those offences which subject the offender to fine and imprisonment by summary convictions, there are a variety of other cases mentioned in the statute where the offender is sub

jected to the payment of a penalty, among which may be mentioned the enactments against jugglers and the exhibitors of shows,1 certain disorderly practices on public occasions and holidays, and in taverns, vessels, and canal boats; also the statutes against raffling3 and betting and gaming, and the act against absconding parents and husbands, authorizing the seizure of their property;5 also the provisions of the excise laws."

But a person accused of being intoxicated in a public place, under chapter 628, Laws of 1857, cannot be summarily tried before a justice of the peace, unless he so elects, but is entitled to give bail for his appearance before the next court of oyer and terminer or of sessions.7

• Laws 1857, ch. 628, amended 1858, ch. 143; 1 R. S., 677, § 1.

▾ Hill v. Peo., 20 N. Y. (6 Smith), 363.

CHAPTER X.

OF THE ARREST AND EXAMINATION OF OFFENDERS, THEIR COMMITMENT FOR TRIAL AND LETTING THEM TO BAIL, AND TRIALS IN COURTS OF SPECIAL SESSIONS.

Ir is designed in this chapter to treat of the proceedings had in indictable offences, prior to their presentment to the grand jury, and also of the trial of offences in a court of special sessions, without a common law jury, and without recourse had to an indictment against the accused.

For the purpose of convenience the subjects treated of in this chapter will be discussed in the following order:

Section one. The proceedings from the complaint until the return of the warrant of arrest.

Section two. Proceedings subsequent to the return of the warrant, where the offence charged is not triable in a court of special sessions.

Section three. Proceedings subsequent to the return of the warrant, where the offence charged is triable before a court of special sessions.

SECTION I.

THE PROCEEDINGS FROM THE COMPLAINT UNTIL THE RETURN OF THE WARRANT OF ARREST.

GENERAL REMARKS.

Section I-COMPLAINT TO BE MADE.

II.-PUBLIC OFFICERS AUTHORIZED TO ISSUE WARRANTS FOR THE APPREHENSION OF PER

SONS CHARGED WITH OFFENCES.

III.-DUTY OF MAGISTRATE UPON COMPLAINT BEING MADE.

IV.-WARRANT TO BE ISSUED.

V.-REQUISITES OF WARRANT.

VI.-WARRANTS, WHERE EXECUTED.

VII.-DEFENDANT, HOW ARRESTED WHEN HE IS IN ANOTHER COUNTY, AND THE WARRANT

IS ISSUED BY A JUSTICE OR ALDERMAN.

VIII.-DUTY OF THE OFFICER WHEN HE ARRESTS THE ACCUSED UPON SUCH ENDORSED WAR.

RANT IN ANOTHER COUNTY.

IX. PROCEEDINGS UPON THE RETURN OF THE WARRANT.

§ 1. COMPLAINT TO BE MADE.

The initiatory step to be taken by any person desirous of having process issued for the apprehension of a person charged with any offence, is to make a complaint concerning the commis

sion of the offence, and the grounds or reasons for suspecting or believing the accused to have been concerned in the perpetration of the same.

The magistrate should not, however, entertain complaints from persons disqualified from being witnesses, as from persons who are deranged in mind, in a state of intoxication1 or otherwise disqualified from being witnesses.

There are two distinct stages in criminal proceedings at which the complaint may be made. First, it may be made before any of the officers named in the next section, and this is usually done in cases where the magistrate has power to try the offence alleged to have been committed, and also in cases where the magistrate does not possess that power, and where a trial cannot be had without an indictment duly found against the accused; but it is deemed expedient to have him arrested at once, and either committed to prison or let to bail, to await the action of the grand jury in finding an indictment against him. It is of complaints, arrests, examinations and trials where the complaint has been made under the circumstances above named that we propose to speak at present. The other stage of the proceedings, at which the complaint is made, is in cases where the accused cannot be tried without an indictment having been found against him, and the prosecutor does not see fit to have any preliminary arrest made, as stated in this chapter, which is usually done to secure the attendance of the prisoner at his trial upon the indictment (which is necessary in all cases where corporal punishment is to be inflicted), but waives all preliminary proceedings, and makes his complaint, in the first instance, by making his accusation to the grand jury. This latter complaint is termed preferring a charge for an indictment, and will be found treated of in a subsequent chapter.3

§ 2. PUBLIC OFFICERS AUTHORIZED TO ISSUE PROCESS FOR THE

APPREHENSION OF PERSONS CHARGED WITH OFFENCES.

The following persons respectively shall have power to issue process for the apprehension of persons charged with any offence, and to execute the powers and duties in relation to the arrest

1 16 John., 143; 10 John., 362.

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