a person indicted before a higher jurisdiction, as the oyer and terminer. (a) As respects the amount of the bail, the statute requires that the bail offered be sufficient. (56) Upon this point the justice must exercise a judicious and reasonable discretion, and be governed by a consideration of the ability and circumstances of the prisoner, and the character of the offense; taking care that the security be sufficient for the appearance of the party, yet not of such amount as would in effect be a denial of bail. (f) When a dangerous wound has been (a) 1 Nun & Walsh, 383. 1 Burn, 318. (f)1 Nun & Walsh, 387. 2 Hawk., ch. 15, 89, n. 3 Maule & Sel., 1. serving the bench-warrant must, if required, take the defendant before a magistrate in the county in which it is issued, or in which he is arrested, for the purpose of giving bail as prescribed in sections 302 and 305. (Id., § 578.) 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 the county belonging to the class mentioned in the 2d subdivision of section 557. (Id., § 580.) (56) AMOUNT OF BAIL. Taking of bail defined.]—The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. (Code Cr. Pro., § 551.) By captain or sergeant of police.]-On arrest of any person for a misdemeanor, between two o'clock in the afternoon and eight o'clock the next morning, any captain or sergeant of police in any city or village, may take bail for appearance before a competent and accessible magistrate the next morning, if a magistrate competent to take the bail be not found within an hour after the arrest. The amount of bail must be as follows: If the offense be the violation of a corporation ordinance, the amount of the bail must be $100, except that if a conviction upon the charge would render the defendant liable only to a fine, the amount of the bail must be double the largest fine that could be imposed; if the conviction would render him liable to imprisonment for thirty days or less, the amount of bail must be $200. In all other cases, the amount of bail must be $500. (Id., § 554.) given, from which death may probably ensue, the magistrate ought to be very cautious how he takes bail. (g) In such a case it is usual to detain the party in custody until the person wounded shall have been pronounced out of danger. () It is said, and *so is the common practice, that the sureties ought to be, [*578 ] at least two men of sufficient ability. (¿) But where the party charged is himself a responsible person in point of property, and one surety of equal and unquestionable responsibility is offered, there can be no danger in common cases, of accepting them, and not requiring two sureties. But whenever the justice accepts one surety only, there ought to be no doubt of the sufficiency of his property to answer the penalty of the recognizance. And in such case, the character and place of residence of the surety ought to be taken into consideration. It is also an indispensable rule that each of the sureties ought to be severally of sufficient ability and property to answer the sum in which he is bound. The ability and quality of the prisoner, and the nature of the crime, should always be taken into consideration in determining upon the sufficiency of the sureties, and the sum in which they are held to recognize. As there is great responsibility upon the magistrate in these cases, he may, in order to ascertain to his satisfaction, the ability of the sureties, examine them upon oath as to the value of their property. It is every day's practice, in the higher courts, to do this. And it is the more reasonable because there are no regulations by any statute respecting the amount of bail to be required by a justice of the peace. One rule, it is said, should be uniformly adopted; and that is, to require such sureties as are possessed in their own right, of a clear real estate within the county, to such an amount as that, upon a sale of it at public auction, the full amount of the sum in which the surety was bound, may be certainly realized. Sureties not possessed of such real estate may, doubtless, in some instances, be safely taken by the justice; but in all cases sureties possessing, under a clear title, real estate in the county in which the recognizance is taken, ought to be preferred. Personal estate is so fluctuating, and may be so easily kept from the possession of an officer, and transferred from the possessor into other hands, that it affords no such security for the penalty of a recognizance as real estate. () It is manifest that unless proper caution is made use of (g) 1 Hawk., ch. 23, § 15. 1 Curw., 491. 2 Hawk, ch. 15, § 54. (h) 1 Nun & Walsh, 381. 320 (i) 1 Chit. Cr. L., 93. 2 Hale, 125. 1 Burn, (k) Davis' J., 96, 97. by magistrates upon the subject of requiring such sureties, on taking a recognizance, as will be of sufficient ability to respond in the sums for which they are bound, the whole object of a public prosecution may be defeated, and the guilty escape and go unpunished. (7) An attorney may become surety for his client, in a criminal case.(m) A married woman can not be bound by recognizance, because it is not capable of being estreated. (n) She can no more enter into a bond of this nature than she can into any other, while she [*579] is a feme-covert. A * minor can not be accepted as surety or enter into a recognizance as principal, because he can not bind himself during his minority. In cases both of married women and minors, they must procure some person to be bound for them, as principal, and other persons as sureties to sucn principal. (6) A person convicted of an infamous crime, as perjury, &c., can not be admitted as bail. (p) It is said that if, after inquiry by a magistrate upon the oath of the sureties, he finds he has been deceived, he may require fresh and better sureties; and may commit the party, on his refusal to procure them; for that insufficient sureties are as no sureties. (2) But this position, though resting on the high authority of Serjeant Hawkins, seems questionable. And in a recent case, in which the court decided that they would not increase the bail, on an affidavit disclosing facts in aggravation of the original offense, and rendering the enormity of it greater than it had appeared to the court when they granted the original rule for bail, Lord Ellenborough, Ch. J., said "that this had never been done before, and that bail having been once taken, it could not now be taken in an additional sum;" and one of the learned judges stated that he doubted how the defendant, having been once arrested, could be arrested again, which in fact must be done, to compel him to give additional bail. (») (57) (p) Rex v. Edwards, 4 T. R., 440. (n) 2 Hawk., ch. 15, § 89. Styles, 369. 3 M. & § 114. 8., 1. (0) Davis' J., 93. (57) FURTHER, OR NEW, BAIL. When it may be required.]-Whenever the district attorney of any county shall, in writing and under oath, represent to a justice of the supreme court, or a county judge of the county in which an indictment has been found, that he verily believes the bail upon, in, or taken upon, any recognizance, or bond by a defendant in any indictment are insufficient, and that he fears that unless the defendant is arrested he may escape, the said justice of the supreme court or county judge may issue a warrant in the usual form of a bench-warrant, for the arrest of said defendant, Although the statute allows the magistrate no discretion to refuse bail, when tendered, with such suretics as he can have no doubt are sufficient, yet in offenses of a heinous nature, he ought and safely may require bail in such a sum, and sureties of such unquestionable responsibility as in most cases it will be difficult or impossible for the party to procure; and it is said by Mr. Davis, that when a justice of the peace, in such cases, acts according to his best discretion, and without partiality or malice, he will be fully justified. (s) By an act of congress, of the 24th of September, 1789, and by another act of the 2d of March, 1793, authority is given to take bail for any offense or crime against the United States, except where the punishment is death, to any justice or judge of the United States, and to any chancellor, judge of the supreme or superior court, or (s) Davis' J., 88. directed to any officer authorized to serve the same, and, said defendant may be arrested upon and by virtue of said warrant and brought before said justice or judge. If, after investigation, such justice or judge shall deem the bail sufficient, he shall discharge said defendant. If, after investigation, he shall find said bail insufficient, the defendant may give new bail, in the same manner and with the same force and effect as if no bail had been given. If such defendant shall neglect or omit to give such new bail, said justice or judge shall by warrant commit said defendant to the county jail of the county in which the indictment was found, until he shall give proper and sufficient bail as required by law, or be otherwise legally discharged. (Laws of 1879, ch. 59, § 1; 3 R. S., 7th ed., 2568.) The Code of Criminal Procedure has a provision to the same effect. It directs that the court to which the committing magistrate returns the deposition and statement, or in which an indictment or 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 an indictment being found, in the cases provided in section 306. (Code Cr. Pro., § 599.) After re-commitment.]—If the order for arrest and re-commitment be made for any other cause than failure to appear for judgment, 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 undertaking.]-This is given by section 605. first judge of any court of common pleas, or mayor of any city, and to any justice of the peace, or other magistrate, of any state where the offender may be found. The recognizance taken by any of the persons authorized, is to be returned to the court of the United States having cognizance of the offense; and on refusal to enter into such recognizance, the magistrate before whom the same shall be refused, may imprison the person so refusing. (58) When [ *580 ] * the punishment, by the laws of the United States, is death, bail can only be taken by the supreme or circuit court, or by a justice of the supreme court, or a judge of the district court of the United States. If the party is not ready with bail, at the time he is apprehended and examined, and the offense is bailable, he may at any time be released from imprisonment on finding sureties. (4) And after the recognizance has been entered into, the justice before whom it is taken will send notice of the fact to the jailer and an order to liberate him. (u) And it is said that justices of the peace may send a prisoner, for a short time, to some private prison, to afford him an opportunity, when necessary, of procuring bail before he is committed for trial; but this practice has been disapproved of as inconvenient and not agreeable to law. For in strictness the magisirate has no authority thus to detain a party in custody out of the common jail; and in so doing he acts on his own responsibility, and should therefore be very cautious. (v) The practice, however, of permitting the prisoner to remain a short time before his final commitment, in the custody of an officer, to afford him this opportunity, is very reasonable and liable to no serious objection. A faithful officer will be careful, in such case, not to suffer an escape; and the party thereby may avoid the inconvenience of a commitment, in some cases, where his bail, when procured, would be ample security for his appearance to take his trial. (w) Notice of bail is, in ordinary cases, not usually required by magis trates when the prosecutor is in attendance and has an opportunity of objecting; but it may be required if the magistrate thinks the case proper for it; and when the bail tendered has been rejected for insufficiency, and the party thereupon committed, the magistrate, in (t) 1 Burr., 460. 2 Hawk., ch. 16, § 1, n. 1. 1 Nun & Walsh, 383. (u) 1 Chit. Cr. L., 101. 1 Nun & Walsh, 383. (v) 1 Burn, 321. 1 Chit. Cr. L., 345. Cro. Cir. Comp., 15. (w) Davis, J., 99. (58) Rev. Stat. United States, §§ 1014, 1015. |