CHAPTER VI.

RETAKING, AFTER AN ESCAPE OR RESCUE.

SECTION 186. May be at any time, or in any place in the state. 187. May break open a door or window, if admittance refused.

§ 186. May be at any time, or in any place in the state. If a person arrested escape or be rescued, the person, from whose custody he escaped or was rescued, may immediatety pursue and retake him, at any time, and in any place in the state.

See 1 Bish. Crim. Proc., § 163; Cooper v. Adams, 2 Blackf. 294; Com. v. Sheriff, 1 Grant (Penn.), 187.

§ 187. May break open a door or window, if admittance refused. To retake the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a building.

CHAPTER VII.

EXAMINATION OF THE CASE, AND DISCHARGE OF THE DEFENDANT OB HOLDING HIM TO ANSWER.

SECTION 188. Magistrate to inform defendant of the charge, and his right to counsel.

189. Time to send, and sending for counsel.

190. On appearance of counsel, or waiting for him a reasonable time examination to proceed.

191. When to be completed; adjournment.

192. On adjournment, defendant to be committed, or discharged on deposit of money.

193. Form of commitment.

194. Depositions, to be read on examination, and witnesses examined. 195. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf.

196. Defendant to be informed of his right to make a statement. 197. Waiver of his right, and its effect.

198, 199. Statement, how taken.

200. How reduced to writing, and authenticated.

201. After statement or waiver, defendant's witnesses to be examined 202. Witnesses to be kept apart.

203. Who may be present at examination.

204. Testimony, how taken and authenticated.

SECTION 205. Depositions and statement, how and by whom kept.

206. Defendant entitled to copies of depositions and statement.
207. Defendant, when and how to be discharged.

208. When and how to be committed.

209. Order for commitment.

210. Certificate of bail being taken.

:

211. Defendant to choose how he shall be tried.

212. Order for bail, on commitment.

213, 214. Form of commitment.

215. Undertaking of witnesses to appear, when and how taken.
216. Security for appearance of witness, when and how required.
217. Infants and married women may be required to give security
for appearance as witnesses.

218. Witness to be committed, on refusal to give security for appear.

ance.

219. Witness, unable to give security, may be conditionally examined. 220. Last section not applicable to prosecutor or accomplice.

221. Magistrate to return depositions, statement and undertakings of witnesses, to the court.

$188. Magistrate to inform defendant of the charge, and his right to counsel. When the defendant is brought before a magistrate upon an arrest either with or without warrant on a charge of having committed a crime, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had.

See State Const., art. 1, § 6.

"Right to aid of counsel, see § 8, ante.

The provisions of this section are only applicable to proceedings prosecuted by indictment. People v. Cook, 45 Hun, 36.

In People v. Mondon, 103 N. Y. 221; 4 N. Y. Cr. Rep. 561; 34 Alb. L. J. 436, defendant was an Italian laborer, having an imperfect understanding of the English language. He was under arrest, without warrant, charged with murder. A coroner's inquest was being held. The prisoner was taken by the sheriff, in whose custody he was, and whose power he could not resist, before the coroner's inquest then engaged in an investigation against himself. He did not go there voluntarily. He was sworn by the coroner as a witness; was without counsel, and without means to employ counsel. He was not informed that he could not be compelled to be a witness against himself, nor that he need not give an answer which would tend to criminate himself. Held, that the prisoner's attendance before the coroner was compulsory, and the testimony taken was involuntary and inadmissible under the Constitution.

This case was distinguished in People v. Chapleau, 121 N. Y. ; 30 State Rep. 992.

A person against whom an inquisition has been found by a coroner's jury, whether arrested before or after the filing thereof, is entitled to a hearing be

fore a magistrate in the same manner as if he had been arrested upon an ordinary information as defined by section 145. Matter of Ramscar, 63 How. Pr. 255.

In People v. McGloin, 91 N. Y. 241; 12 Abb. N. C. 172, it was held that sections 188-200, Code Crim. Proc., refer in terms only to the judicial examinations therein provided for, regularly instituted before one of the magistrates described in section 147 for the examination of criminals, and do not include a statement made after arrest to a coroner, not acting in an official capacity, but simply as a clerk to take down said statement.

189. Time to send, and sending for counsel. He must also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the town or city, as the defendant may name. The officer must, without delay and without fee, perform that duty.

See references under § 188, ante.

§ 190. On appearance of counsel, or waiting for him a reasonable time, examination to proceed. The magis trate, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, must, after waiting a reasonable time therefor, proceed to examine the case, unless the defendant waives examination and elects to give bail, in which case the magistrate must admit the defendant to bail if the crime is bailable, as provided in section two hundred and ten; and in that case witnesses in attendance or shown to be material for the people may be required to appear and testify, or to be examined conditionally as prescribed in sections two hundred and fifteen, two hundred and sixteen, two hundred and seventeen, two hundred and eighteen, two hundred and nineteen and two hundred and twenty.

See references under § 188, ante.

§ 191. When to be completed; adjournment. The examination must be completed at one session, unless the magistrate, for good cause shown, adjourn it. The adjournment cannot be for more than two days at each time, unless by consent or on motion of the defendant.

See People v. McGloin, 91 N. Y. 248; 12 Abb. N. C. 172; People v. Mondon, 103 N. Y. 221; reversing 38 Hun, 191.

A magistrate has no authority to commit for a hearing on a subsequent day until the accused has been first brought before him. Pratt v. Hill, 16 Barb. 303. A state magistrate may commit for a further hearing touching a crime against the United States. Ex parte Smith, 5 Cow. 273.

In a temporary commitment by a magistrate for further examination on a charge of larceny, not necessary to state whether grand or petit. People v. Nash, 5 Park. 473; 16 Abb. Pr. 281.

$192. On adjournment, defendant to be committed, or discharged on deposit of money. If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody, upon his giving bail to appear during the examination, or upon the deposit of money as provided in this Code, to make sure of his appearance at the time to which the examination is adjourned.

See People v. McGloin, 91 N. Y. 248; 12 Abb. N. C. 172; People v. Mondon, 103 N. Y. 221; reversing 38 Hun, 191.

$193. Form of commitment.-The commitment for examination is by an indorsement 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

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or the city and county of New York, "to the keeper of the city prison of the city of New York."

See People v.

McGloin, 91 N. Y. 248; 12 Abb. N. C. 172.

194. Depositions, to be read on examination, and witnesses examined. 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, or elects to have the examination, must summon for cross-examination the witnesses so examined, if they be in the county. He must also issue subpoenas for additional witnesses required by the prosecutor or defendant.

See People v. McGloin, 91 N. Y. 248; 12 Abb. N. C. 172; People v. Mondon, 38 Hun, 191; 103 N. Y. 221; People v. Restell, 3 Hill, 289; Sơn v. People, 12 Wend. 344.

195. Examination of witnesses to be in presence of defendant, and witnesses to be cross-examined in his behalf. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.

See People v. McGloin, 91 N. Y. 248; 12 Abb. N. C. 172; People v. Restell, 3 Hill, 289; Bebee v. People, 5 id. 33.

196. Defendant to be informed of his right to make a statement. When the examination of the witnesses on the part of the people is closed, the magistrate must 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 sees 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.

See People v. McMahon, 2 Park. 669, 670; People v. Hendrickson, 1 id. 416; People v. McGloin, 91 N. Y. 248; 12 Abb. N. C. 172; People v. Mondon, 103 N. Y. 221; 4 N. Y. Cr. Rep. 561; People v. Chapleau, 30 State Rep. 992.

§ 197. Waiver of his right and its effect. 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.

See People v. McGloin, 91 N. Y. 248; 12 Abb. N. C. 172; People v. Mondon, 38 Hun, 191.

§ 198. Statement, how taken. 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 you resided there? What is your business or profession?

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

See Bellinger v. People, 8 Wend. 595; People v. Moore, 15 id. 419; Matter of Boswell, 34 How. Pr. 347; People v. McGloin, 91 N. Y. 248; People v. Mondon, 103 id. 221; 4 N. Y. Cr. Rep. 561.

§ 199. Statement, how taken. 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 to be the truth.