§ 215. Undertaking of witnesses to appear; when and how taken. On holding the defendant to answer, the magis trate 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.

§ 216. Security for appearance of accomplice as witness. When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness is an accomplice in the commission of the crime charged, 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.

217. Witness under sixteen. Children under the age of sixteen years, when such witnesses, may be committed as provided by section two hundred and ninety-one of the Penal Code.

§ 218. Witness to be committed on refusal to give security for appearance.— 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.

219. Witness may be conditionally examined on behalf of people.- A witness may be conditionally examined on behalf of the people in the manner and with the effect provided by title twelve, chaptert hree of this Code, for taking examination of witnesses conditionally on behalf of the defendant. A copy of the order and affidavit upon which the application is made, together with notice of the time and place where the examination is to be taken, shall be served on the defendant, and his counsel, if he have any, at least two days before the time fixed for such examination, and the defendant may be present personally upon such examination to confront the witness produced against him, if the defendant have no counsel the order shall contain a provision assigning counsel to him for the purpose of such

examination, upon whom a copy of said order, affidavit and notice shall be served.

§ 220. Repealed in 1883, chap. 416, § 4.

§221. Magistrate to return depositions, statements and undertakings of witnesses, to the court.-When a magistrate has discharged a defendant, or has held him to answer, as provided in sections two hundred and seven and two hundred and eight, he must return to the next court of oyer and terminer or court of sessions of the county, or city court having power to inquire into the offense by the intervention of a grand jury, at or before its opening on the first day, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by him.

TITLE IV.

OF PROCEEDINGS AFTER COMMITMENT, AND BEFORE

INDICTMENT.

CHAPTER L Preliminary provisions.

IL Formation of the grand jury; its powers and duties.

CHAPTER I.

PRELIMINARY PROVISIONS.

SECTION 222. Crimes; how prosecuted.

222. Crimes; how prosecuted. All crimes prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment.

State Const., art. I, § 6; Fed. Const., art. V.

The right to be charged by indictment or presentment is a fundamental right of a party which cannot be waived by him so as to deprive such party of afterward setting up the want of jurisdiction in the court to try him. Matter of McCluskey, 40 Fed. Rep. 71; 12 Cr. L. Mag. 210.

CHAPTER II.

FORMATION OF THE GRAND JURY, ITS POWERS AND DUTIES.

BEOTION 223, 224. Grand jury defined.

225, 226, 227. For what courts to be drawn; the order

228. Misdescription.

229. Mode of selecting grand jurors.

230. If sixteen grand jurors do not appear, additional number to be

ordered.

231, 232, 233. Manner of designating the additional grand jurors. 234. Summoning the additional grand jurors, and compelling their

attendance.

235. When new grand jury may be summoned for the same court. 236. Grand jury, how drawn when more than a sufficient number

attends.

237. Who may challenge an individual grand juror.

238. Causes of discharge of the panel.

239. Causes of challenge to an individual grand jurer.

240. Manner of taking and trying the challenges.

241. Decision upon the challenge.

242. Effect of allowing a challenge to an individual grand juros. 243. Violation of last section

244. Appointment of foreman.

245, 246, 247. Oath of the foreman and the other grand jurors.

248. Charge of the court.

249. Retirement of the grand jury.

250. Appointment of a clerk, and his duties.

251. Discharge of the grand jury.

252. Power of grand jury to inquire into crimes, etc.

253. Foreman may administer oaths.

254. Definition of indictment.

255. Evidence receivable before the grand jury.

256. Same.

257. Grand jury not bound to hear evidence for the defendant, but

may order explanatory evidence to be produced.

258. Degree of evidence to warrant an indictment.

259. Grand jurors must declare their knowledge as to commission of a crime.

260. Grand jury must inquire as to persons imprisoned on criminal charges and not indicted; the condition of public prisons and the misconduct of public officers.

261. Grand jury entitled to access to public prisons, and to examine

public records.

262, 263, 264. When and from whom they may ask advice, and wh may be present during their sessions.

265. Secrets of the grand jury to be kept.

266. Grand jury; when bound to disclose the testimony of a witness 267. Grand juror not to be questioned for his conduct as such.

$223. Grand jury defined. A grand jury is a body of men, returned at stated periods from the citizens of the county, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county. See 12 Am. St. 900, note; 1 Chic. Leg. News, 20; 4 Crim. L. Mag. 471; 8 id. 711: 27 Can. L. J. 4; 9 Amer. & Eng. Ency. of Law, 1.

In Matter of Bain, 121 U. S. 1, the court say: The importance of the part played by the grand jury in England cannot be better illustrated than by the language of Justice Field, in a charge to a grand jury, reported in 2 Sawy. 667. 'The institution of the grand jury,' he says, 'is of very ancient origin in the history of England - it goes back many centuries. For a long period its powers were not clearly defined; and it would seem, from the accounts of commentators on the laws of that country, that it was at first a body which not only accused, but which also tried, public offenders. However this may have been in its origin, it was at the time of the settlement of this country an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name; until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare, upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.'"

"The grand jury is merely an appendage of the court, of which the judge is the head or controlling power." Thomp. Trials, § 168.

In People, ex rel., v. Sheriff, 11 Civ. Proc. Rep. (County Ct. Chautauqua County), it is said that the grand jury "is no part of the court; the court can exist without it."

But in Matter of Choate (Gen. Term, 1st Dept.), 41 Alb. L. J. 287, Barrett, J., said: “It is clear from the elementary writers, and from what the court of appeals implied in the Hackley Case, 24 N. Y. 78, that the grand jury room is an enlargement of the court-room and part of the court sitting.

*** In People v. Naughton, Mr. Justice Pratt held that the grand jury was a constituent part of the court of oyer and terminer, and that its pro

ceedings were a part of the proceedings of that court. See page 423. In People, ex rel. Hackley, v. Kelly, 21 How. Pr. 54, the supreme court of this department at general term held that the grand jury was an adjunct of the court as well as the petit jury. It was there insisted that the commitment was illegal because the contempt did not occur in the presence of the court, but in the grand jury room before the jury as an independent body. Leonard, J., answered this contention by saying that when summoned, sworn and organized the grand jury are a constituent part of the court for the performance of the functions and duties devolved upon the court, as much as a body of twelve petit jurors impanelled for the trial of a person charged with crime. * When the witness has been brought before the grand jury to testify he is for the time in the custody or under the control of the court and the grand jury. He stands in the same relation to the court as a witness on the stand before the court and a petit jury."" See, also, Bergh's Case, 16 Abb. Pr. (N. S.) 266; People v. Briggs, 60 How. Pr. 21.

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8224. Grand jury defined. The grand jury must consist of not less than sixteen and not more than twenty-three persons, and the presence of at least sixteen is necessary for the transaction of any business.

A common-law grand jury must contain not over twenty-three nor under twelve. 4 Bl. Com. 302.

It is error to swear twenty-four persons as a grand jury. People v. King, 2 Caines, 98.

A conviction will not be reversed because the indictment purports to have been found by twenty-four grand jurors, if the objections were not taken in court below. Conkey v. People, 1 Abb. Dec. 418; 5 Park. 31.

§ 225. For what courts to be drawn; the order.- A grand jury must be drawn for every term of the following courts:

1. The court of oyer and terminer, except in the city and county of New York, and the county of Kings, and except for extraordinary or adjourned terms;

2. The court of general sessions of the city and county of New York and the court of sessions of the county of Kings; and

3. The city courts whenever an indictment can be there found. See People v. Rugg, 98 N. Y. 545; 3 N. Y. Cr. Rep. 176.

$226. For what courts to be drawn; the order.- A grand jury may also be drawn.

1. For every other court of sessions, when specially ordered by the court or by the board of supervisors;

2. For the court of oyer and terminer in the city and county of New York, upon the order of a judge of the supreme court, elected in the first judicial district;