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ment. It is a rule of the common law, that the defendant shall have every reasonable opportunity to meet and answer the charges and proofs against him; and the Commissioners are not disposed to treat with seriousness, the answer that the right should not exist, because by possibility it may be abused. The theory of a prosecution is, that the defendant is called upon to explain circumstances appearing against him, which, if unexplained, tend to establish his guilt; and to deny him this right, is to convert a criminal prosecution into the means of destroying the defendant, by springing upon him on the trial, when wholly unprepared to explain them, a state of facts, which, if the opportunity had been allowed, would have admitted of abundant explanation.

In accordance with views similar to those here expressed, the British parliament have within a few years enacted," that all persons who shall be held to bail or committed to prison for any offence against the laws, shall be entitled to require and have, on demand, (from the person who shall have the lawful custody thereof, and who is thereby required to deliver the same,) copies of the examinations of the witnesses respectively upon whose depositions they have been so held to bail or committed, on payment of a reasonable sum for the same, not exceeding 14d. for each folio of 90 words: provided, that if such demand shall not be made before the day appointed for the commencement of the assizes or sessions, at which the trial is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the judge or other person to preside at such trial shall be of opinion, that such copy may be made and delivered without delay or inconvenience to such trial; but it shall nevertheless be competent for such judge, &c, if he shall think fit, to postpone such trial, on account of such copy of the examination of witnesses not having been previously had by the party charged. And all persons under trial, are entitled, at the time of their trial, to inspect, without fee or reward, all depositions (or copies thereof,) which have been taken against them, and returned into the court before which such trial shall be had. 6 & 7 W. 4 ch. 114, sec. 3, 4.

§ 207. After hearing the proofs, and the statement of the defendant, if he have made one, if it appear, either

that a public offence has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an endorsement on the depositions and statement, signed by him, to the following effect: "There being no sufficient cause to believe the within named A. B. guilty of the offence within mentioned, I order him to be discharged."

208. If, however, it appear from the examination, that a public offence has been committed and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must, in like manner, endorse on the depositions and statement, an order, signed by him, to the following effect: "It appearing to me by the within depositions (and statement, if any,) that the offence therein mentioned, [or any other offence, according to the fact, stating generally the nature thereof,] has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same."

§ 209. If the offence be not bailable, the following words, or words to the same effect, must be added to the endorsement: "and that he be committed to the sheriff of the county of ," [or in the city and county of New-York, "to the keeper of the city prison of the city of New-York."]

§ 210. If the offence be bailable, and bail be taken by the magistrate, the following words, or words to the same effect, must be added to the endorsement mentioned in section 208; "and I have admitted him to bail, to answer, by the undertaking hereto annexed."

§ 211. If the offence be bailable and the defendant be admitted to bail, but bail have not been taken, the following words, or words to the same effect, must be added to the endorsement mentioned in section 208 = "and that he be admitted to bail in the sum of

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dollars, and be committed to the sheriff of the county of [or in the city and county of New-York, "to the keeper of the city prison of the city of New-York,"] until he give such bail."

§ 212. If the magistrate order the defendant to be committed as provided in sections 209 and 211, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or if that officer be not present, to a peace officer, who must immediately deliver the defendant into the proper custody, together with the commitment.

§ 213. The commitment must be to the following effect:

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County of Albany, [or as the case may be.]

"In the name of the people of the State of New-York : "To the sheriff of the county of Albany," [or in the city

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,]

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The last seven sections are more full than the existing statutory provisions, 2 R. contain practical forms as conveniently carried out.

S., 3d ed. 795, sec. 21, 22, and well as directions, which can be

§ 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 person, that the witness is unable to procure sureties, 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 sec ion 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

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