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* To refuse or delay to bail any person who is entitled [*576] to bail, is an offense at common law against the liberty of

In felony, to deliver him into custody.]-If the crime charged in the indictment be a felony, the officer arresting the defendant must deliver him into custody, according to the command of the bench-warrant, as prescribed in section 301. (Id., § 579.)

Taking bail, when offense is bailable.]—When the defendant is so delivered into custody, if the felony charged be bailable, and the amount of bail have been fixed, bail may be taken by the judge presiding in the court in which the indictment was found, or to which it is sent or removed, or by any magistrate in that county belonging to the class mentioned in the second subdivision of section 557. (Id., § 580.)

Bail, how put in. Form of undertaking.]—The bail must be put in by a written undertaking, executed by a sufficient surety, with or without the defendant, in the discretion of the magistrate, and acknowledged before the court or its clerk, in open court, or the magistrate, in substantially the following form:

"An indictment having been found on the day of 18 in the court of sessions of the county of Albany [or as the case may be], charging A., B. with the crime of [designating it generally], and he having been duly admitted to bail in the sum of dollars:

"We, A. B., defendant, and [if the defendant join in the undertaking] C. D., surety or sureties, as the case may be, of [stating his place of residence and occupation], and E. F., of [stating his place of residence and occupation], hereby jointly and severally undertake, that the abovenamed A. B. shall appear and answer the indictment above mentioned, in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court; and, if convicted, shall appear for judgment, and render himself in execution thereof; or if he fails to perform either of these conditions, that we will pay to the people of the state of New York the sum of dollars." (Id., § 581, as amended in 1862.)

Sections applicable hereto.]-The provisions contained in sections 569 to 577, both inclusive, apply to the qualifications of the sureties, and to all the proceedings respecting the putting in and justification of bail, and incidental thereto. (Id., § 582.)

DEPOSIT INSTEAD OF BAIL.

Deposit, when and how made.]-The defendant, at any time after an order admitting him to bail, instead of giving bail, may deposit with the county treasurer, of the county in which he is held to answer, the sum mentioned in the order; and upon delivering to the officer, in whose custody he is, a certificate of the deposit, he must be discharged from ustody. (Code Cr. Pro., § 586.)

May be made after bail given.]—If the defendant have given bail, he may, at any time before the forfeiture of the undertaking,

the subject, and for which the magistrate is also liable in damages to the party injured. It was also made punishable by ancient English

in like manner deposit the sum mentioned in the undertaking; and upon the deposit being made, the bail is exonerated. (Id., § 587.)

Bail may be given after deposit.]-If money be deposited, as provided in the last section, bail may be given, in the same manner as if it had been originally given upon the order for admission to bail, at any time before the forfeiture of the deposit. The court or magistrate before whom the bail is taken must thereupon direct, in the order of allowance, that the money deposited be refunded by the county treasurer to the defendant; and it must be refunded accordingly. (Id., § 588.)

Deposit, how applied.]-When money has been deposited, if it remain on deposit and unforfeited at the time of a judgment for the payment of a fine, the county treasurer must, under direction of the court, apply the money in satisfaction thereof, and after satisfying the fine, must refund the surplus, if any, to the defendant. (Id., § 589.)

BAIL ON RECOMMITMENT, AFTER FORFEITURE.

In what cases.]-The court to which the committing magistrate returns the deposition and statement, or in which an indictment or an appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes, or if the court be not in session, any judge thereof, may direct the arrest of the defendant, and his commitment to the officer to whose custody he was committed at the time he was admitted to bail, and his detention, until legally discharged, in the following cases:

1. When, by reason of his failure to appear, he has incurred a forfeiture of his bail, or of money deposited instead thereof, as provided in section 593;

2. When it satisfactorily appears to the court that his bail, or either of them, are dead, or insufficient, or have removed from the state;

3. Upon indictment being found, in the cases provided in section 306. (Code Cr. Pro., § 599.)

Contents of the order.]-The order for the recommitment of the defendant must recite, generally, the facts upon which it is founded, and direct that the defendant be arrested by any sheriff, constable, marshal or policeman in this state, and committed to the officer to whose custody he was committed, at the time he was admitted to bail, to be detained until legally discharged. (Id., § 600.)

Defendant may be arrested in any county.]-The defendant may be arrested pursuant to the crder, upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest; except that when arrested in another county, the order need not be indorsed by a magistrate of that county. (Id., § 601.)

For failure to appear for judgment, defendant must be committed.]-If the order recite, as the ground upon which it is made, the

statutes. () And lest the intention of the law should be frustrated by magistrates, it is expressly declared by statute, 1 William and Mary, that excessive bail ought not to be required. And there is a similar provision in our state constitution and bill of rights, which declares that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted." (s) What bail should be called excessive, must be left to the magistrate to determine, on considering the circumstances of the case. And on the other hand, if the magistrate takes insufficient bail, he is liable to be fined if the criminal does not appear; but if he does appear, according to the condition of the recognizance, those who admitted him to bail are safe; inasmuch as the end of the law is answered whenever the appearance of the prisoner is in fact procured. (t)

It is also an offense at common law, for a magistrate to grant bail where it ought to be denied; and it is punishable as a negligent escape. (u) It has been decided that it is no excuse for justices of the peace admitting a person to bail who was committed for an offense not bailable by law, that they did not know he was committed for such offense; for that they ought to inform themselves, at their peril, of the cause for which the party was committed, that

(r) 1 Nun & Walsh, 398. 2 Hawk., ch. 15, § 13. 3 Bos & Pul., 551. Davis' J., 83. See 8 Edw. 1, St., 2, ch. 15, and 31, Car., II.

(8) 1 R. S., 94, § 17; id., 7th ed., 270; Const., art. 1, §5. See also 8th amend., to Const., U. S. (t) 2 Hawk., ch. 15, § 6. Davis' J., 83. (u) 2 Hawk., ch. 15, § 6. 1 Nun & Walsh, 399.

failure of the defendant to appear for judgment, upon conviction, the defendant must be committed according to the requirement of the order. (Id., § 602.)

For other cause, he may be admitted to bail.]-If the order be made for any other cause, and the crime be bailable, the court may fix the amount of bail, and may direct, in the order, that the defendant be admitted to bail in the sum fixed, which must be specified in the order. (Id., § 603.)

Bail in such case, by whom taken.]-When the defendant is admitted to bail, the bail may be taken by any magistrate in the county having authority, in a similar case, to admit to bail upon the holding of the defendant to answer before indictment, as prescribed in sections 557 and 558, or by any other magistrate to be designated by the court. (Id., § 604.)

Form of the undertaking.]—This is prescribed by section 605

Qualifications of bail.-The bail must possess the qualifications, and must be put in, in all respects, in the manner prescribed by sections 569 to 577, inclusive. (Id., § 606.)

they might thereby be satisfied that he was bailable by law. The magistrate is not bound to demand bail, or that the person to be bailed shall find sureties; nor is he bound to forbear committing the party, till he shall refuse to find sureties; but may justify a commitment, unless the party himself shall tender his sureties. (v)

At common law, no justice, nor indeed any court, can bail a person in execution on a judgment, or on a conviction of any offense; for such imprisonment, without bail, is a part of the sentence and punishment. (w) Nor is it usual or expedient to bail the party between the

conviction and judgment. And upon motion to the court, [*577] it is proper, after conviction, *when the party is under recognizance, and sentence is to be suspended, have the amount of the penalty of the recognizance increased, and new sureties procured, if the former recognizance or sureties be not satisfactory. (x)

What courts may let to bail.] The court of oyer and terminer, in each county, has jurisdiction to let to bail any person committed, before and after indictment found, upon any criminal charge whatever. (1)

The courts of sessions, in counties other than New York and Kings, have jurisdiction to let to bail persons indicted therein for any crime triable therein as provided by law; and to let to bail persons committed to the prison of the county, before indictment, for any offense triable in the court. (2)

What officers may let to bail.] The statute enumerates certain officers who have power to let to bail persons charged with crime. (55)

(v) 2 Strange, 1216. 2 Hawk., ch. 15, §§ 12, 14. 2 Hale, 123.

(w) 4 Black. Com., 295. 8 T. R., 325. 2 Hawk., ch. 15, § 64.

(x) Davis' Just., 84.

(y) Code Cr. Pro., § 22, sub. 8; id., §§ 558, 583. (z) Id., § 39, sub. 10, 11. See id., §§ 558, 583.

(55) BEFORE WHOM TAKEN.

Admission to bail defined.]-When the defendant is held to appear for examination, bail for such appearance may be taken either,

1. By the magistrate who issued the warrant or before whom the same is returnable; or

2. By any judge of the supreme court. (Code Cr. Pro., § 550.)

Offenses not bailable.]—The defendant can not be admitted to bail except by a judge of the supreme court or by a court of oyer and terminer, where he is charged,

1. With a crime punishable with death; or

2. With the infliction of a probably fatal injury upon another, and

As to letting to bail after indictment found, see ante, p. 360. A justice of the peace has no power at common law, to let to bail under such circumstances as that, if death ensue, the crime would be murder. (Id, § 552.)

Who may admit to bail.]—When the defendant has been held to answer, as provided in section 208, the admission to bail may be by the magistrate by whom he is so held, if he be one of the magistrates mentioned in section 147, and the crime charged is a misdemeanor, or a felony punishable with imprisonment not exceeding five years; or if he be a judge of the supreme court; or any judge authorized to preside in a court having jurisdiction to try indictments, in all cases where bail may be taken, before conviction, as provided in section 554. (Id., § 557.)

When, by reason of the degree of the crime, the committing magistrate has not authority to admit to bail, the defendant may be admitted to bail by one of the officers having authority to admit to bail in the case, as provided in the second subdivision of the last section, or by the court to which the depositions and statements are returned by the committing magistrate, as provided in section 221, if the case be triable therein, or if not, by the court to which, after indictment, it may be sent or removed for trial. (Id., § 558.)

When magistrate may bail.]—The defendant may be admitted to bail by a magistrate, as provided in the last two sections, upon being held to answer, or at any time before the return of the depositions and statement to the court. After that time he can be admitted to bail only by a judge presiding in the court in which the crime is triable, if it be sitting, or if not, by one of the magistrates mentioned in the 2d subdivision of section 557. (Id., § 559.)

If the defendant be admitted to bail by a magistrate, the bail must be taken by the magistrate granting the order, unless the order shall specify that the same may be taken by some other designated magistrate. (Id., § 567.)

Captains or sergeants of police.]-Any captain or sergeant of police in any city or village of this state may take bail for appearance before a competent and accessible magistrate the next morning, from any person arrested for a misdemeanor between two o'clock in the afternoon and eight o'clock the next morning, if a magistrate competent to take the bail be not found within an hour after the arrest. When such captain or sergeant of police takes bail, he must take it by an undertaking in the form in this section mentioned, executed in his presence by the defendant and at least one surety, who must justify under oath, and for that purpose the officer may administer the oath. (Id., § 553.)

UPON AN INDICTMENT, BEFORE CONVICTION.

In misdemeanor, officer to take defendant before a magistrate.] -When the crime charged in the indictment is a misdemeanor, the officer

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