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the State law concerning committing magistrates in similar cases.12 In States where a magistrate has such power, the commissioner may order the accused to give a recognizance to appear before him upon a specified day; 13 but, it has been held, that he cannot do this in New York.14

In the districts of New York the accused may waive a preliminary examination.15 But this is no waiver of his right to object that the complaint fails to state a criminal offense.16 In the districts of Indiana the commissioner may refuse to accept such a waiver.17

Where the State statute so authorizes, the commissioner may adjourn the hearing to a different time and place.18 It has been held that he has no power to commit the prisoner, pending the examination, for more than twenty-four hours, except for cause shown or at the prisoner's request.19 He has no power to punish for contempt.20 He has the power to take evidence in accordance with the practice of the State where he sits.21 In Alabama, it is his duty to reduce to writing the testimony of the witnesses.22

In the districts of New York, he may issue a subpoena at the request of the Government, which may be served anywhere in the State.23 It has been held there that a subpoena issued by him, upon the application of a defendant, cannot be served outside the county where the hearing takes place, unless the court makes an order for the attendance of such witness or endorses such an order on the subpoena, which can only be done upon an affidavit by the defendant or his counsel stating that he believes that the evidence of the witness is material, and

Fed. Cas. No. 16,393; Re Kaine, 10 N. Y. Leg. Obs. 257, Fed. Cas. No. 7,598.

12 U. S. v. Martin, 17 Fed. 150, 9 Sawyer 90.

13 U. S. v. Rundlett, 2 Curtis C. C. 41, Fed. Cas. No. 16,208; U. S. v. Walker 6 Pitts. L. J. 37; U. S. v. Evans, 2 Fed. 147.

14 U. S. v. Case, 8 Blatchf. 250, Fed. Cas. No. 14,742.

15 U. S. v. Ruroede, 220 Fed. 210.

16 Ibid.

17 Van Buran v. U. S., 56 Fed. 77. 18 U. S. v. Rundlett, 2 Curtis C. C. 41, Fed. Cas. No. 16,208.

19 U. S. v. Worms, 4 Blatchf. 332, Fed. Cas. No. 16,765.

20 Ex parte Perkins, 29 Fed. 900, 910; U. S. v. Beavers, 125 Fed. 778. 21 U. S. v. Smith, 17 Fed. 510. 22 Strong v. U. S., 34 Fed. 17. 23 U. S. v. Beavers, 125 Fed. 778, 782.

that the attendance of the witness at the examination is necessary.24

The accused may be represented by counsel upon the preliminary examination and can call witnesses to contradict or to explain the testimony of the witnesses for the prosecution; 25 but, it has been held, that he cannot offer evidence to impeach the character of a witness.26 It has been said that when documentary proof is given it is not an essential prerequisite to the commitment, that witnesses also be examined before the magistrate in the presence of the accused.27 A certified copy of the indictment is sufficient evidence to authorize the magistrate to permit the accused to be committed for trial. in the district where the indictment is pending.28 So is a confession of the accused.29 The District Attorney, without the consent of the commissioner and prosecutor, has no power to dismiss a criminal charge, while the examination of the accused is proceeding before a commissioner. 30

He may, pending the examination before a commissioner, obtain an indictment, if the grand jury will find one; 31 or he may file an information for the same offence.32 The discharge

24 U. S. v. Beavers, 125 Fed. 778, 782.

25 U. S. v. Bollman, 1 Cranch C. C. 373, Fed. Cas. No. 14,622; U. S. v. White, 2 Wash. C. C. 29, Fed. Cas. No. 16,685.

26 U. S. v. Walker, 6 Pitts. L. J. 37.

27 Re Alexander, 1 Lowell 530, Fed. Cas. No. 162.

28 Re Alexander, 1 Lowell 530, Fed Cas. No. 162; U. S v. Jacobi, 4 Am. L. T. U. S. 148, Fed. Cas. No. 15,460; U. S. v. Haskins, 3 Sawyer 262, Fed. Cas. No. 15,322; U. S. v. Pope, 24 Int. Rev. Rec. 29, Fed. Cas. No. 16,069. Contra, Bagnall v. Albeman, 4 Wis. 163.

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30 U. S. v. Schumann, 2 Abb. U. S. 523, Fed. Cas. No. 16,235.

31 U. S. v. Kerr, 159 Fed. 135; U. S. v. Achen, 267 Fed. 595, 597. 32 U. S. v. Archen, 267 Fed. 595, 597, a prohibition case, per Garvin, J.:

In each of the cases before the court, a hearing was in progress before the commissioner when the information was filed, upon the conclusion of which the commissioner determined that there was not sufficient before him to justify holding the respective defendants. However that may be, the proof by affidavit submitted to the court in each case amply justified a holding that probable cause had been shown. It is urged in behalf of the defendants that, once a proceeding is begun be

of the accused by the commissioner is not a bar to subsequent proceedings.33

§ 488a. The commitment. The commitment after the examination must be in writing. It may be a writ, warrant or mittimus. It must state the existence of a probable cause. It is the better practice to state therein that the probable cause was supported by oath or affirmation of a witness or witnesses.*

"When two or more charges are made, or two or more indictments are found against any person, only one writ or warrant shall be necessary to commit him for trial; and it shall be sufficient to state in the writ the name or general character of the offenses, or to refer to them only in very general terms." 5

"Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant, or mittimus, a copy thereof shall be delivered to such sheriff, or jailer, as his authority to hold the

fore a commissioner, the government can take no other action until a determination has been made by the commissioner, and the defendant either held to bail or discharged. If that were the law, a commissioner's illness, absence, inadvertence, inability to reach a conclusion, or reluctance or arbitrary refusal to render a decision, would result in prosecutions being unreasonably and unnecessarily delayed. If a commissioner holds that there is a lack of probable cause, the United States attorney may nevertheless submit a charge to a grand jury, and no reason appears why under like circumstances (when the charge is a misdemeanor) he may not ask leave to file an information. If the court finds probable cause to exist, every requirement has been met."

33 Re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151; U. S. v. Burr, 1 Burr's Trial 1179.

§ 488a. 1 State v. James, 78 N. C. 455. See People v. Wilson, 93 Cal. 377, 28 Pac. 1061, 12 Cyc. 313.

2 U. S. R. S., § 1028.

3 Ex parte Burford, 1 Cranch C. C. 276, 4 Fed. Cas. No. 2,148; Ex parte Sprout, 1 Cranch C. C. 424, 22 Fed. Cas. No. 13,267; U. S. v. Lumsden, 1 Bond 5, Fed. Cas. No. 15,641; U. S. v. Shepard, 1 Abb. U. S. 431, Fed. Cas. No. 16,273; Re Van Campen, 2 Benedict 419, Fed. Cas. No. 16,835.

4 Ex parte Burford, 3 Cranch 448, 2 L. ed. 495; reversing 1 Cranch C. C. 276, 4 Fed. Cas. No. 2,148; Ex parte Bennett, 2 Cranch 612, 3 Fed. Cas. No. 1,311; Ex parte Sprout, 1 Cranch, C. C. 424, 22 Fed. Cas. No. 13, 267; State v. Tennison, 39 Kansas 726, 18 Pac. 948; King v. State, 18 Neb. 375, 25 N. W. 519; People v. Rhonor, 4 Parker Cr. Cases (N. Y.) 166; Contra, Commonwealth v. Murray, 2 Virginia Cases 504; see also Rex v: Platt, 1 Leach C. C. 187; Rex v. Wyndhan, 1 Str. 2; Rex v. Wilkes, 2 Wilson C. P. 151, 12 Cyc. 313.

U. S. R. S., § 1027.

prisoner, and the original writ, warrant, or mittimus shall be returned to the proper court or officer, with the officer's return thereon." 6

A commitment made before the assembling of the grand jury remains in force while the grand jury is in session; 7 and a commitment may be made during a session of the grand jury.8

After an indictment is quashed, the accused may be committed to await a new indictment.9.

After conviction and sentence, a certified copy of the record of the sentence is sufficient to authorize the detention of the convict and his arrest if he is out on bail without any warrant or formal mittimus.10

§ 489. Warrants of removal. "For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a Circuit court to take bail, or by any chancellor, Judge of a Supreme or Superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had."1 The statute applies to a removal to the District of Columbia, and from a district in a State to a district within

6 U. S. R. S., § 1028.

7 U. S. v. Burr, 1 Burr's Trial 1179.

8 U. S. v. Burr, 1 Burr's Trial 1179.

9 U. S. v. Town-Maker, Hemp. 299; U. S. v. Smith, 2 Cranch C.

C. 111, Fed. Cas. No. 16,326.

10 Ex parte Wilson, 114 U. S. 417,. 421, 29 L. ed. 89; Ex parte Thurston, 233 Fed. 847; People v. Nevins, 1 Hill (N. Y. 154). See infra, § 534c. § 489. 1 U. S. R. S., § 1014. 2 Benson v. Henkel, 198 U. S. 1,

a Territory. It has been held that there can be no removal to Alaska for an offense such as kidnapping, which is made a crime by the compiled of Alaska but not by the Statutes which apply throughout the United States.4

A similar removal may be made from the District of Columbia to a Federal District,5 and the accused may be arrested in the District of Columbia on a warrant from a District Court of the United States in another district and held a reasonable time for the issue of extradition papers.

It seems that the statute does not apply to proceedings before military courts. A warrant for the arrest of a person on trial before a naval court of inquiry was refused.R

It is provided by the Act of February 9, 1903: "The provisions of section ten hundred and fourteen of the Revised Statutes, so far as applicable, shall apply throughout the United States for the arrest and removal therefrom to the Philippine Islands of any fugitive from justice charged with the commission of any crime or offense against the United States within the Philippine Islands, and shall apply within the Philippine Islands for the arrest and removal therefrom to the United States of any fugitive from justice charged with the commission of any crime or offense against the United States. Such fugitive may, by any judge or magistrate of the Philippine Islands, and agreeably to the usual mode of process against offenders therein, be arrested and imprisoned, or bailed, as the case may he, pending the issuance of a warrant for his removal to the United States, which warrant it shall be the duty of a judge of the court of first instance seasonably to issue, and of the officer or agent of the United States designated for the purpose to execute. Such officer or agent, when engaged in executing such warrant without the Philippine Islands, shall have all the

25 Sup. Ct. 569, 49 L. ed. 919; Re Buell, 3 Dillon 116; U. S. ex rel. Vause v. McCarthy, S. Cas., 250 Fed. .800; Easterday v. McCarthy, C. C. A., 256 Fed. 651.

3 U. S. v. Haskins, 3 Sawyer 262. 4 Ex parte Crause, 228 Fed. 547, but see Tiberg v. Warren, C. C. A., 192 Fed. 458.

5 Stallings v. Splain, D. C., C. C. A., 258 Fed. 510.

6 Ibid.

7 Kurtz v. Moffitt, 115 U. S. 487, 500, 29 L. ed. 458, 461.

8 U. S. v. Mackenzie, 1 N. Y. Leg. Obs. 227.

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