days in all, unless by consent or on motion of the de

fendant.

§ 191. If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody, upon the deposite of money as provided in this code, as security for his appearance at the time to which the examination is adjourned.

If the examination be for any cause adjourned, the magistrate has now no power to admit the defendant to bail Some power should exist, to relieve the defendant from actual custody, during the progress of the examination. The Commissioners propose that this may be done upon the deposite of a sum to be fixed by the magistrate. Bail could not well be taken, according to the system prescribed on that subject, which requires a full opportunity for examination into the sufficiency of the proposed bail; a proceeding which would occupy nearly all the time fixed by section 190, for the examination of the charge.

§ 192. The commitment for examination is by an endorsement signed by the magistrate, on the warrant of arrest, to the following effect: "The within named A. B., having been brought before me under this warrant, is committed for examination, to the sheriff of the county of or, in the city and county of NewYork, "to the keeper of the city prison of the city ef New-York."

§ 193. At the examination, the magistrate must, in the first place, read to the defendant the depositions of the witnesses examined on the taking of the information, and if the defendant request it, must summon the

witnesses so examined, if they be in the county. He must also issue subpoenas for additional witnesses required by the prosecutor or the defendant.

More full and explicit than the existing provision, 2 R. S, 3d. ed., 794, sec. 14, but not variant in principle.

§ 194. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.

Same as provided in 2 R. S., 3d. ed., 794, sec. 15.

§ 195. When the examination of the witnesses on the part of the people is closed, the magistrate must distinctly inform the defendant, that it is his right to make a statement in relation to the charge against him, (stating to him the nature thereof;) that the statement is designed to enable him, if he see fit, to answer the charge and to explain the facts alleged against him, that he is at liberty to waive making a statement, and that his waiver cannot be used against him on the trial.

§ 196. If the defendant waive his right to make a statement, the magistrate must make a note thereof, immediately following the depositions of the witnesses against the defendant; but the fact of his waiver cannot be used against the defendant on the trial.

§ 197. If the defendant choose to make a statement, the magistrate must proceed to take it in writing, without oath, and must put to the defendant the following questions only:

What is your name and age ?

Where were you born?

Where do you reside, and how long have there?

What is your business or profession?

you resided

Give any explanation you may think proper, of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation.

§ 198. The answer of the defendant to each of the questions must be distinctly read to him, as it is taken down. He may thereupon correct or add to his answer, and it must be corrected until it is made conformable to what he declares is the truth.

According to the present practice, after the examination of the witnesses for the people is closed before the magistrate, the next stage of the proceedings is what is called the “examination" of the defendant. This examination must be taken in all cases of felony, and in cases of misdemeanor, if the defendant require it, or the magistrate think it necessary. Before taking it, the defendant is to be informed of the charge against him, and is to be allowed a reasonable time to send for counsel, who may examine and cross-examine the witnesses. This, however, it is to be observed, is not to be done until the witnesses on the part of the prosecution are examined. 2 R. S., 3d ed. 794, sec. 14, 15. At the commencement of the examination, the defendant is to be informed by the magistrate that he is at liberty to refuse to answer any question which may be put to him ; but no restriction is placed upon the magistrate, in regard to the questions which may be put. The answers of the defendant are to be reduced to writing and read to him, with the right on his part to correct them; and when made conformable to what he declares to be the truth, are to be authenticated by the magistrate.

In this proceeding, the Commissioners have discovered principles which they deem at war with the rights of the accused. The very term "examination," which is used in the statute, and the proceedings pointed out as the mode of taking it, all seem to be a departure from the spirit of the constitutional declaration, which provides that "no person shall be compelled, in any criminal case, to be a witness against himself." The object of the examination, as it was originally instituted, was, not to place the defendant in the hands of a cross-examining magistrate, who might, according to the principles of the French practice, by the exercise of ingenuity, extract from him evidence of his guilt. But it was designed, in the humane and benign spirit of the common law, to give the defendant an opportunity, by a voluntary explanation, to exculpate himself from the charge. In this light it has uniformly been regarded by the courts. The very provision of the existing statutes, requiring that the defendant shall be cautioned by the magistrate that he is not bound to answer, clearly shows that this was the design of the legislature.

The same view of the subject was taken by Mr. Livingston, in restricting the examining magistrate, as is substantially proposed by the Commissioners, sec. 197, "to give any explanation he may think proper of the circumstances appearing in the testimony against him, and to state any facts that he thinks will tend to his exculpation." Liv Crim. Code, 507, art. 173.

In the same spirit, also, the English Commissioners, in their eighth report, already referred to, p. 55, art. 32, proposed a provision that "if any case be made out against the accused, he must be asked what he has to say against the charge, and his answer or defence is to be taken down in writing."

Notwithstanding, however, the obvious policy of the law, in providing for the defendant this mode of exculpation, it has been, not unfrequently, and it might almost be said without exaggeration, uniformly, supposed in practice, that the examination of the defendant was designed for wholly differ. ent purposes. Instead of his being informed, as the fact is, that it is furnished to him as a shield and is not to be used against him as a sword, he is by a loose course of practice, if no other motive be imputable, led to believe that it is one of the ordinary proceedings against him, having in view the

establishment of his guilt. He is accordingly examined by a series of searching questions, oftentimes proceeding upon the assumption of his guilt,-and is driven to the alternative of equivocating as to facts, or of denying circumstances plainly true, or of what is occasionally his resort, declining to answer. Those who are in the slightest degree conversant with criminal trials, can well attest how successfully the adoption of either of these alternatives, can be used against the defendant on his trial. If he equivocate, or if he deny a circumstance the existence of which is certain, the most conclusive inference of guilt is drawn against him. And if, as his only refuge from the torture of a cross-examination, he decline to answer the question, he learns, when it is too late, the fatal character of his error, in supposing that his legal privilege will protect him from the inference of guilt uniformly urged against him from the mere fact of his silence.

To counteract, by appropriate legislation, consequences like these, seems to be a plain and palpable duty. It is but carrying out the spirit of the rule familiar to every lawyer, and having its foundation in the plainest reason, that the exercise of a right shall not prejudice the party by whom it is exerted. It was well said by an eminent English judge, when a counsel was commenting on the refusal of a witness to answer a question, the answer to whieh tended to criminate him, that the comment was unfair, because the law gave the witness the right to decline, and that it would cease to be a right, the moment it eould be used to his prejudice.

Deeply impressed with the correctness of these views, the Commissioners have proposed to dispense entirely with this examination, and to substitute in its place, what the law designed should alone be furnished, an opportunity to the defendant ta make a statement in his exculpation. They accordingly provide, that when the examination of the witnesses on the part of the people is closed, the magistrate shall inform the defendant that it is his right to make a statement in relation to the charge against him; that the statement is designed to enable him, if he see fit, to answer the charge, and to explain the facts alleged against him;-that he is at liberty to waive it;-and that his waiver cannot be used against him on the trial. Sec. 19. If he elect to make the statement, it is then to be taken by the magistrate, who, instead liberty to put every form of question which

of being left at