his ingenuity may suggest, is restricted to asking the defendant general questions as to his age and residence, and the like, and to asking him to give any explanation he may think proper, of the circumstances appearing against him, and to state any facts which he thinks will tend to his exculpation. Sec. 197.

§ 199. The statement must be reduced to writing by the magistrate, or under his direction, and authenticated in the following form:

1. It must set forth in detail, that the defendant was informed of his rights as provided in section 195, and that after being so informed, he made the statement.

2. It must contain the questions put to him, and his answers thereto, as provided in sections 197 and 198.

3. It may be signed by the defendant, or he may refuse to sign it but if he refuse to sign it, his reason therefor must be stated as he gives it:

4. It must be signed and certified by the magistrate.

This section carries out fully the principle of those just referred to, and is substantially in accordance with the views of Mr. Livingston, as embodied in his Code of Criminal Procedure. Liv. Crim. Code, 507, art. 173, subd. 2.

§ 200. After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, must be sworn and examined.

Same as 2 R. S., 3d ed. 794, sec. 14, modified to adapt it to the waiver of a statement by the defendant, as provided in the code, sec. 188, 189. See also, Liv. Crim Code, 507, art. 174.

§201. The witnesses produced on the part either of the people or of the defendant, can not be present at the examination of the defendant; and while a witness is under examination, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other, until they are all examined.

Same as 2 R. S., 3d ed. 795, sec. 19.

§ 202. The magistrate must also, upon the request of the defendant, exclude from the examination, every person, except the clerk of the magistrate, the prosecutor and his counsel, the attorney-general, the districtattorney of the county, the defendant and his counsel, and the officer having the defendant in custody.

The object of this section is to carry out more fully the spirit of the last. The policy of the statutes has always been, to prevent the concocting of a charge against a defendant, upon collusive or false testimony. The law excludes the witnesses, while another witness or the prisoner is under examination, with this view. The object of the rule may be wholly defeated, if, though not present, one witness may be informed of the testimony of another, by persons who are present.

Another advantage will result from the adoption of this section. If the examination must necessarily be public, the consequence may be that the testimony upon the mere preliminary examination will be spread before the community, and a state of opinion created, which, in cases of great public interest, will render it difficult to obtain an unprejudiced jury. The interests of justice require that the case of the defendant should not be prejudged, if it can be avoided; and no one can justly complain, that until he is put upon his trial, the dangers of this pre-judgment are obviated.

To guard the rights of the defendant against a secret examination, the section provides that it shall not be conducted in private, unless at his request.

§ 203. The testimony given by each witness must be reduced to writing, as a deposition, by the magistrate or under his direction, and authenticated in the following form:

1. It must state the name of the witness, his place of residence, and his business or profession:

2. It must contain the questions put to the witness, and his answers thereto; each answer being distinctly read to him as it is taken down, and being corrected or added to, until it is made conformable to what he declares is the truth:

3. If a question put be objected to on either side, and overruled, or the witness decline answering it, that fact, with the ground on which the question was overruled, or the answer declined, must be stated:

4. The deposition must be signed by the witness, or if he refuse to sign it, his reason for refusing must be stated in writing, as he gives it:

5. It must be signed and certified by the magistrate.

A portion of the examination of the case by the magistrate, which has been conducted with extreme looseness, prejudicial alike to the people and the defendant, is the examination of the witnesses for and against the charge. The existing statutes 2 R. S. 3d ed, 795, sec. 2), require nothing more than that the magistrate shall examine the witnesses and reduce their testimony to writing, and require their signatures thereto. In taking down the testimony, the practice has been very common, to take such portions of the statements of the

witness, as the magistrate deems material; omitting entirely the questions put, and professing to give nothing more than the substance of the evidence. When it is remembered how essential it is, in testing the credibility of witnesses who have been previously examined, to point with certainty to their former statements on oath, relating to the same subject, and how important this right may become to the people as well as to the defendant, it will be readily admitted that the testimony in the precise form in which it was given, leaving no room for doubt or misconstruction as to its meaning, should be carefully preserved. Daily experience shows, that in the mode in which depositions are taken by the examining magistrate, when the attempt is made to impeach a witness by the production of his deposition, nothing is more common than his escape from the force of the contradiction, by his own statement and that of the magistrate, that the substance of the testimony only, and not the language of the witness, had been taken.

It is proposed to correct this evil, by requiring that the deposition of the witness contain the questions put and the answers given; each answer being distinctly read to the witness, as it is taken down, and being corrected or added to until it is made conformable with what he declares is the truth; and that if a question put be objected to and overruled, or the witness. decline answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated.

§ 204. The magistrate or his clerk must keep the depositions taken on the information or on the examination, and the statement of the defendant, if any, until they are returned to the proper court; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offence, the attorneygeneral, the district attorney of the county, and the defendant and his counsel.

§ 205. A violation of the provisions of the last section is punishable as a misdemeanor.

The last two sections have in view the same objects as are stated in the note to sec. 202, p. 94, and enforce them by the same penalty as is now applied by statute, to the disclosure of the fact that an indictment for a felony has been found against a party not arrested. 2 R. S., 3d ed. 812, sec. 39. The principle in both cases is the same, na.nely, to prevent the defeat or prejudice of justice, and the penalty should be the

same.

§ 206. If the defendant be held to answer the charge, the magistrate or his clerk having the custody of the depositions taken on the information or examination, and of the statement of the defendant, must, on payment of his fees at the rate of five cents for every hundred words, and within two days after demand, furnish to the defendant, or his counsel, a copy of the depositions and statement, or of either of them, or permit him to take a copy.

A practice, which has been extensively pursued, and which, in the view of the Commissioners, is incompatible with the due administration of justice, is the refusal to permit the defendant to have copies of the depositions taken against him. It has been customary in some portions of the state, when the depositions are returned to the court, to deliver them over to the district attorney, by whom they are retained with as much secrecy as a counsel in a civil action would use in concealing from his adversary, the testimony by which success was to be attained. The right of the defendant to the inspection of the depositions, has been frequently resisted by public prosecutors, as incompatible with the interests of the prosecution.

It has been said in justification of this practice, that if the opportunity were afforded to the defendant of inspecting these depositions, he might thereby be permitted to escape under cover of a false defence; and even courts, when applied to, to enforce what the Commissioners believe to be the right of the defendant, have refused to lend their aid in its enforce[CRIM. CODE.]

7