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SECTION II.

OF THE PROCEEDINGS FROM THE PRESENTMENT OF THE INDICTMENT DOWN TO THE TRIAL.

Section XVIII.-COMPROMISING CERTAIN OFFENCES AFTER INDICTMENT FOUND.

XIX. PERSONS NOT INDICTED TO BE DISCHARGED.

XX.-DISCHARGED AND ACQUITTED PRISONERS NOT TO PAY FEES.

XXI.-BRINGING THE PRISONER FROM THE COURT TO THE JAIL.

XXII-OF THE BENCH WARRANT.

XXIII.-BENCH WARRANT HOW DIRECTED.

XXIV.-ARREST UPON THE BENCH WARRANT.

XXV. OF THE ARREST OF THE DEFENDANT WHEN HE HAS FLED FROM THE STATE.
XXVI.-COMPELLING THE APPEARANCE OF CORPORATIONS WHEN INDICTED.

XXVII —OF THE ARRAIGNMENT OF THE DEFENDANT.

XXVIII. PERSONS IMPRISONED ON CONVICTION, MAY BE ARRAIGNED AND TRIED for AN

OFFENCE COMMITTED IN PRISON.

XXIX.-DEFENDANT ENTITLED TO COPY OF THE INDICTMENT.

XXX.-INDICTMENTS, WHEN AND HOW QUASHED.

XXXI.-MOTION TO QUASH BY THE PROSECUTOR.

XXXII.-MOTION TO QUASH BY THE DEFENDANT.

XXXIII.-NOLLE PROSEQUI.

XXXIV.-OF PLEAS BY THE PRISONER.

XXXV.-THE GENERAL ISSUE.

XXXVI. THE PLEA TO THE JURISDICTION.

XXXVII.-OF THE DEMURRER TO THE INDICTMENT.

XXXVIII.-OF DECLINATORY PLEAS.

XXXIX.-OF PLEAS IN BAR OF THE INDICTMENT.

XL.-OF THE PLEA IN ABATEMENT.

XLI.-PLEA OF GUILTY.

XLII.-THE PLEA OF NOLO CONTENDERE.

XLIII.-OF THE PLEA OF PARDON.

XLIV.-OF REPLICATIONS TO SPECIAL PLEAS AND JOINDERS TO DEMURRERS.

XLV.-BAILING THE DEFENDANT AFTER INDICTMENT.

XLVI.-POWER OF COURTS OF OYER AND TERMINER AND COURTS OF SESSIONS TO BAIL

PRISONERS.

XLVII.-BY WHOM BAIL MAY BE TAKEN AFTER THE ADJOURNMENT OF THE COURT.
XLVIII.-IN SUCH CASES RECOGNIZANCES TO BE FILED.

XLIX.-OF THE DISCRETIONARY POWER TO BAIL.

L.-OF THE AMOUNT OF BAIL REQUIRED.

LI.-OF THE SURRENDER OF THE PRISONER BY HIS BAIL.
LII.-GENERAL REQUISITES AND VALIDITY OF RECOGNIZANCES.
LIII.-RECOGNIZANCES, HOW TAKEN.

LIV. OF THE LIEN OF RECOGNIZANCES UPON REAL ESTATE.

LV.-RECOGNIZANCE, WHEN FORFEITED.

LVI-ESTREATING THE RECOGNIZANCE.

LVII-FORFEITED RECOGNIZANCES HOW REMITTED.

LVIII-SUITS ON RECOGNIZANCES.

LIX.-POSTPONING THE TRIAL ON THE DEFENDANT'S APPLICATION.

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LXI.-PRISONER WHEN ENTITLED TO RELEASE BY NEGLECT TO TRY HIM.

LXII. THE TRIAL BEING POSTPONED, WITNESSES TO BE RECOGNIZED TO APPEAR at

TRIAL.

LXIII.-WITNESSES IN SUCH CASES TO BE ATTACHED AND PROSECUTED FOR FAILURE

TO APPEAR.

LXIV.-PRISONERS IN JAIL ALLOWED TO CONVERSE WITH THEIR COUNSEL.

LXV.-PRISONERS WHEN NOT TO BE REMOVED BY HABEAS CORPUS DURING SESSION OF

OYER AND TERMINER.

LXVI.-OF SUBPOENAS FOR WITNESSES FOR THE PEOPLE.

LXVII. SUBPOENAS FOR THE DEFENDANT, AND HOW ISSUED.

LXVIII.-WITNESSES IN A FOREIGN COUNTY.

LXIX.-FEES NOT TO BE TENDERED WITNESS.

C. P.-17.

Section LXX.-DISOBEDIENCE OF SUBPOENA.

LXXI.-PRISONERS MAY ALSO BE BROUGHT BEFORE COURTS AS WITNESSES.

LXXII.-FOREIGN AND POOR WITNESSES HOW PAID.

LXXIII.-COMMISSIONS FOR WITNESSES.

LXXIV. OF THE EXAMINATION OF WITNESSES CONDITIONALLY FOR THE DEFENDANT.
LXXV.-OF THE REMOVAL OF INDICTMENTS BEFORE TRIAL FROM THE COURT OF
SESSIONS TO THE COURT OF OYER AND TERMINER.

LXXVI.-CONTENTS OF THE APPLICATION.

LXXVII.-WHEN ORDER TO BE GRANTED.

LXXVIII. RECOGNIZANCE THEREON.

LXXIX.-FILING THE RECOGNIZANCE AND DELIVERY OF THE ORDER.

LXXX.-OF THE REMOVAL OF INDICTMENTS FROM THE COURT OF OYER AND TERMINER
TO THE SUPREME COURT, BEFORE TRIAL.

LXXXI.-RECOGNIZANCE UPON SUCH CERTIORARI.

LXXXII.-WHEN SUCH RECOGNIZANCE NOT REQUIRED.

LXXXIII.-PROCEEDINGS AFTER REMOVAL INTO SUPREME COURT.

LXXXIV.-OF CHANGING THE PLACE OF TRIAL.

§ 18. COMPROMISING CERTAIN OFFENCES AFTER INDICTMENT FOUND. If an indictment shall be found on any charge for assault and battery or other misdemeanor, for which the injured party shall have a remedy by civil action, such injured party may appear in the court where such indictment is pending, and acknowledge in writing that he has received satisfaction for the injury and damage done him, and such court may, in its discretion, on payment of the costs incurred, order that no further proceedings be had on such indictment, and may discharge the defendant therefrom, which order shall operate as a perpetual stay of all further proceedings on such indictment.1

The above provisions do not extend to any indictment for any assault and battery or other misdemeanor, charged to have been committed:

1. By or upon any officer or minister of justice, whilst in the execution of the duties of his office; or,

2. Riotously; or,

3. With an intent to commit a felony.2

Misdemeanors ought not to be compromised without the advice and consent of the district attorney;3 and they cannot be so compromised after conviction.4

1

§ 19. PERSONS NOT INDICTED TO BE DISCHARGED.

Within twenty-four hours after the discharge of any grand

2 R. S., 730, § 72.

2 R. S., 730, § 73.

• Gilmore's Case, 2 City, H. Rec., 9. Vide 3, Id., 139, as to challenging to fight a duel.

Peo. v. Bishop, 5 Wend., 112.

jury, it shall be the duty of such court to cause every person confined in the county prison upon any criminal charge, who shall not have been indicted, to be discharged without bail, unless satisfactory cause shall be shown to such court for detaining such person in custody or upon bail, as the case may require, until the meeting of the next grand jury in such county.1

In case of the inability of the district attorney to procure the attendance of witnesses before the grand jury, he should make an affidavit of that fact and of the circumstances of the case, showing also reasonable ground for believing that the witnesses could be procured before or at the next session of the grand jury to be held in the county, and apply to the court immediately upon the discharge of the grand jury for an order detaining such person in custody or upon bail until the meeting of the next grand jury in the county. It would also be well enough to state the leading facts in the case, showing also probable ground for believing that in case of the attendance of the witnesses an indictment would be found against the prisoner, and also that reasonable efforts had been made to procure the attendance of such witnesses before the grand jury which had been discharged.

In case of the discharge of the prisoner, the following proclamation is made by the crier:

"Hear ye, hear ye, hear ye? If any man can show cause why A B should stand longer imprisoned, let him come forth and he shall be heard, for he stands upon his discharge."

No cause being shown, the crier further proceeds:

"Hear ye, hear ye, hear ye! No cause being shown why A B should longer remain in custody of the sheriff of the county of Rensselaer, he is discharged."

Persons in jail, or bound by recognizance to appear and answer to an indictment to be found, are not of course entitled to a discharge. Although no indictment be found, their discharge rests in the discretion of the court.2

§ 20. DISCHARGED AND ACQUITTED PRISONERS NOT TO PAY FEES. Every person discharged from prison, or from his recognizance, in consequence of no indictment being found against him, or in 1 5th ed. R. S., vol. 3, p. 1066, § 26. 'Champlain v. Peo., 2 Com. (2 N. Y.), 82.

consequence of his not being brought to trial, and every person acquitted on trial, shall be discharged without being required to pay any fees.1

§ 21. BRINGING THE PRISONER TO COURT FROM THE JAIL.

Whenever it shall be necessary for any purpose to bring any prisoner, confined in a county jail, before any court of oyer and terminer, or any court of sessions which may be sitting in such county, such court may, by order, and without issuing any writ of habeas corpus or other process, direct such prisoner to be brought before them accordingly.

§ 22. OF THE BENCH WARRANT.

The defendant hitherto has up to this stage of the proceedings been supposed to have been either in custody, upon a warrant issued by a committing magistrate, and held to await the action of the grand jury, or else to have been let to bail by some officer, with or without an examination, or he may have been at liberty, no proceedings having been taken against him prior to the. presentment of his case to the grand jury and the subsequent finding of an indictment by them. In the latter case, or where he has been called in court after the presentment and filing of the indictment and his bail has been forfeited, process is issued to compel his attendance in court for the purpose of being arraigned. This process is commonly called a bench warrant, because it was formerly issued by the judge who sat upon the bench, but it may now be issued by the district attorney of the county where the indictment was found, as well as by the court. The following are the provisions of the statute in relation thereto:

A warrant for the arrest of any defendant indicted, may be issued by the court to which such indictment shall be presented, or by any justice of the Supreme Court, or judge of the county courts of the county in which such indictment shall be found, either in vacation or during the sitting of such court.3

A warrant for the arrest of the defendant indicted, may also be issued by the district attorney at any time after such indictment shall be found, but such warrant shall not be issued by any • other officers than those above named.4

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§ 23. BENCH WARRANT, HOW DIRECTED.

By the Revised Statutes it is provided that every bench or district attorney's warrant may be directed to the sheriff or constables of any county in this State, and when the same shall be served in any county other than that in which the indictment shall be found, the same proceedings shall be had as on an indorsed warrant issued before the indictment, as prescribed in title two, chapter two, article two, part four, of the Revised Statutes.1

In the capital police district, comprising portions of the counties of Albany, Rensselaer and Schenectady, bench warrants and other criminal process, are to be served by members of said police force, instead of by the sheriff and constables of the county."

The members of the metropolitan police in that district, have also the common law and statutory powers of constables, except for the service of civil process.3

§ 24. ARREST UPON BENCH WARRANT.

It is the duty of the officer holding the bench warrant, upon the arrest of the prisoner, to convey him before the court having jurisdiction to try the indictment, and if such court be not in session, to leave him in the custody of the keeper of the commen jail of the county, where such indictment was found. If the warrant is served in any county, other than that in which the indictment was found, the same proceedings are to be had as on an indorsed warrant issued before the indictment.4 Thus, where a defendant was arrested in one county under a bench warrant duly issued on an indictment in another county, he cannot be let to bail in the former county; he must first be carried to the county where the warrant was issued.5

The proceedings had upon indorsed warrants before the indictment, will be found spoken of in a previous chapter."

2

3

4

12 R. S., 728, § 58; Laws 1830, ch. 320, § 62. Vide ante.

Laws 1865, ch. 554, § 41; Laws 1866, ch. 483.

5th ed R. S., vol. 2, page 1006, § 8.

* 2 R. S., 728, §§ 57, 58.

Matter of Gorsline, 21 How. Pr., 85 10 Abb., 282; Sichel v. Chapman, 30 How., 202. Vide 6 Hill, 344.

• Vide ante.

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