and county of New-York, "to the keeper of the city prison of the city of New-York:"] "An order having been this day made by me, that A. B. be held to answer, upon a charge of [stating briefly the nature of the offence,] you are commanded to receive him into your custody and detain him, until he be legally discharged." Dated at the city of Albany, [or as the case may be,] The last seven sections are more full than the existing statutory provisions, 2 R. S., 3d ed. 795, sec. 21, 22, and contain practical forms as well as directions, which can be conveniently carried out. § 214. On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people, a written undertaking, to the effect that he will appear and testify at the court to which the depositions and statement are to be sent, or that he will forfeit the sum of one hundred dollars. 215. When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness will not appear and testify, unless security be required, he may order the witness to enter into a written undertaking, with such sureties, and in such sum as he may deem proper, for his appearance as specified in the last section. § 216. Infants and married women, who are material witnesses against the defendant, may in like manner be required to procure sureties for their appearance, as provided in the last section. § 217. If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the magistrate must commit him to prison until he comply or be legally discharged. The last four sections are the same in substance, as 2 R. S., 3d ed. 795, sec. 22, 24, 25, 26. § 218. When, however, it satisfactorily appears, by the examination on oath of the witness or any other that the witness is unable to procure sureties, person, he may be forthwith conditionally examined, on behalf of the people, in the manner and with the effect provided in this code, and must thereupon be discharged. 219. The last section does not apply to the prosecutor, or to an accomplice in the commission of the offence charged. The reasons for the introduction of section 218, are stated in the note to sec. 12, p. 7-9. The exception in sec. 219, as to the prosecutor or an accomplice, is obviously just. In neither of these cases, should the defendant be deprived of the benefit of a cross-examination before the trial jury. § 220. When a magistrate has discharged a defendant, or has held him to answer, as provided in sections 207 and 208, he must return to the next court of oyer and terminer of the county, or city court having power to inquire into the offence, by the intervention of a grand jury, (or in the city and county of New-York, to the next court of sessions,) at or be fore its opening on the first day, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by him. This section is the same as 2 R. S., 3d ed. 796, sec. 28, 29, except in requiring the return of the papers, when the defendant is discharged, as well as when he is held to answer. A due regard for the interests of the public, seems to render it proper, that an examination of the case by the court, should be had, notwithstanding the discharge of the defendant by the magistrate; to the end that it may be submitted to the grand jury, if in the opinion of the court, the magistrate has erred in discharging the defendant. It is, moreover, proper that these proceedings should be preserved as public records, instead of being left, as they may be, under the present system, exposed to loss or to uses prejudicial to an innocent party. TITLE IV. OF PROCEEDINGS AFTER COMMITMENT, AND BEFORE INDICTMENT. CHAPTER I. Preliminary provisions. II. Formation of the grand jury. III. Powers and duties of the grand jury. IV. Presentment, and proceedings thereon. CHAPTER I. S PRELIMINARY PROVISIONS. SECTION 221, 22. Public offences, how prosecuted. The provisions contained in this chapter, are properly introductory to the subject, and in conformity with the rule declared in sec. 8, p. 4-6. § 221. All public offences prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment, except as provided in the next section. § 222. When, however, the proceedings are had for the removal of justices of the peace, police justices or justices of justices' courts, or their clerks, before a court of general sessions, they may be commenced by an accusation in writing, as provided in sections 116 and 117. CHAPTER II. FORMATION OF THE GRAND JURY. SECTION 223. Grand jury defined. 224-227. For what courts to be drawn. 228. If sixteen grand jurors do not appear, additional number to be ordered. 229, 230. Manner of designating the additional grand jurors. 231. Summoning the additional grand jurors, and compelling their at- 232. When new grand jury may be summoned for the same court. 234. Summoning the new grand jury and compelling their attendance. 236. Grand jury, how drawn when more than a sufficient number attends. 237. Who may challenge the panel or an individual grand juror. 238. Causes of challenge to the panel. 239. Causes of challenge to an individual grand juror. 240. Manner of taking and trying the challenges. 241. Decision upon the challenge. 242. Effect of allowing a challenge to the panel. 243, 214. Effect of allowing a challenge to an individual grand juror. 246, 247, 248. Oath of the foreman and the other grand jurors. 249. Charge of the court. 250. Retirement of the grand jury. 251. Appointment of a clerk, and his duties. 252. Discharge of the grand jury. § 223. A grand jury is a body of men, not less than sixteen nor more than twenty-three in number, returned at stated periods from the citizens of the county, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of public offences committed or triable in the county. § 224. A grand jury must be drawn for every term of the following courts: 1. The court of oyer and terminer, except in the city and county of New-York: 2. The court of sessions of the city of New-York, and the city courts. |