CHAPTER III.

SPECIAL PROCEEDINGS COMMON IN CRIMINAL PRACTICE.

§ 28. Preliminary examinations. Strictly speaking, a preliminary examination is not a criminal prosecution, but is simply a means designed to prevent escape until the grand jury can investigate the commission of an indictable offense. In ordinary cases, this method ought not to be resorted to, for it is not the key to the grand jury room. It is a needless proceeding, unless there is danger that the criminal or suspected person may escape before the grand jury can present an indictment. If there is no danger of escape, the grand jury, and not a magistrate, should take the initiative. To have a long investigation before a magistrate, previous to an indictment, in a matter where there is no danger of escape, is a costly and unnecessary proceeding and not consistent with good practice; yet this is often required by prosecuting attorneys as antecedent to a grand jury investigation.

§ 29. Same: The practice. In cases where the accused has been arrested without a warrant, the proceeding is instituted by bringing him before a magistrate and presenting the accusation in the form of an affidavit. If no previous arrest has been made, a complaint and warrant must precede the arrest, but the practice is not the

same in all jurisdictions. In Wisconsin, the complaint must be in writing, but need not be under oath (1). In Michigan, the complaint need not be either in writing or under oath (2). In each of these states, the constitution simply forbids that a warrant should issue except for probable cause, supported by oath or affirmation, which may be oral; and the language of the statutes, which permits the warrant to issue upon oral evidence, prevails. In Illinois, the constitution requires the probable cause to be supported by affidavit, consequently there the evidence must be in writing or the warrant is void (3). Wherever the complaint must be in writing and under oath, the complaint or evidence in writing must show facts constituting a crime, and probable cause to believe the accused to be the guilty person. If one witness has not sufficient knowledge, several affidavits may be placed on file. If the affidavit or affidavits are made on information and belief, the proceedings are void, and the prisoner may be released by a writ of habeas corpus (4).

When the prisoner is brought before the magistrate, the matter may be immediately heard, or it may be postponed for a reasonable time. When the matter is heard, if from the evidence the magistrate is satisfied that the alleged crime has been committed, and that there is a strong probability that the prisoner is the guilty person, the

(1) State v. Davies, 62 Wis. 305.
(2) Turner v. People, 33 Mich. 363.
(3) Lippman v. People, 175 Ill. 101.

(4)

Cal. 164.

Schustek's Case, 11 Am. Cr. Rep. 372; Ex parte Dimmig, 74

prisoner should be committed to await the action of the grand jury, or admitted to bail if the offense is a bailable

one.

§ 30. Search warrants. A search warrant may be termed an auxiliary writ, issued in aid of a criminal case to obtain evidence of guilt. Search warrants were not always known to the law; but the practice crept in gradually (5). To obtain a search warrant, an affidavit should be filed, alleging that certain stolen property is concealed at a certain place. The alleged stolen property and the place to be searched must be particularly described. The warrant must also particularly describe the place to be searched and the thing or things to be seized. If the affidavit sets forth the crime as committed by a particular person, the warrant may provide for his arrest (6), but otherwise it should not. When the articles seized are brought before the magistrate and he finds them subject to the seizure, he should order that they be kept until no longer needed in evidence, after which they should be restored to the owner; but the question of ownership is not finally settled by the magistrate.

§ 31. Other uses of search warrants. Under constitutional prohibitions against unreasonable searches and seizures, it has been doubted whether search warrants can be extended beyond their original uses; but statutes extending them have long been recognized. Search warrants are used for the seizure of gambling implements, obscene pictures, lottery tickets, and so forth. When the

articles are no longer needed in evidence, if they are found to be contraband, the magistrate should order that they be destroyed. In regard to gambling implements, it has been held that they need not be as particularly described as is required in cases of stolen property (7). The owner of a stolen article is generally capable of giving a particular description of it, so that it can be distinguished from other property of the same kind, and thereby prevent a seizure of another person's property; but the same knowledge is not generally possessed by the complainant in a gambling case, where the warrant is not designed for a particular piece of property, but for gaming implements of various kinds and quantities used at a certain place. However a reasonable degree of certainty should be required even in gambling cases.

§ 32. Peace warrants. The practice of obtaining peace warrants is much the same as that pertaining to preliminary examinations. The affidavit or evidence on which the warrant is issued should show that a threat has been made and that there is danger of its being executed. The general rule, that husbands and wives are not competent witnesses against each other, does not apply to peace warrants. If, upon a hearing, the magistrate finds from the evidence that a serious threat has been made, and that there is danger of its being executed, he may require the accused to give a peace bond, and on his failure to do so may commit him. The practice is largely regulated by local statutes.

(7) Frost v. People. 193 Ill. 635.

§ 33. Extradition. Extradition proceedings are designed for the capture and return of fugitives from justice. There are two kinds, international extradition and interstate extradition. With us, extradition is not a matter of comity; it is entirely governed by definite laws.

§ 34. International extradition. International extradition is regulated by treaties, and applies to but a few crimes. It is not permitted in cases based upon political offenses. In our treaties with foreign nations, we expressly stipulate which crimes shall be extraditable. In a treaty with England, it was provided that extradition only applied to such enumerated crimes as were recognized offenses in both the United States and England. In a noted case, where England demanded the surrender of a fugitive, the point was made that the act complained of had not been declared a crime by any act of Congress; but the United States Supreme Court held that as it was a crime under the laws of New York, where the fugitive was found, it was within the meaning of the treaty (8).

§ 35. Interstate extradition. Article IV, section 2, of the Constitution of the United States provides: "A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, or be removed to the state having jurisdiction of the crime."

Many years ago it was held by the Supreme Court of the United States (9) that this provision of the Consti