of the affidavit on which it was granted, if no counsel appear on the part of the people, the examination must proceed. (§ 627.) If the district attorney or other counsel appear on the part of the people, and it be shown to the satisfaction of the court or officer, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination can not take place; otherwise it must proceed. (§ 628.) Testimony, how taken and authenticated.]-The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information, as prescribed in section 200. (§ 629.) Defective depositions. Peo. v. Restell, 3 Hill, 289; Peo. v. Ward, 4 Park., 516; Peo. v. Chrystal, 8 Barb., 545. Deposition, how, by whom and when filed.]-The deposition must be retained by the officer taking it, and filed by him in the office of the clerk of the court without unnecessary delay. (§ 630.) Deposition may be ordered filed nunc pro tunc. Burdell v. Burdell, 1 When it may be read in evidence.]-The deposition, or a certified copy thereof, may be read in evidence by either party on trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness or infirmity, or of his continued absence from the state. (§ 631.) Inability must exist at time of trials to entitle deposition to be read. Fry v. Bennett, 4 Duer, 247. See Donnell v. Walsh, 6 Bos., 621. What is sufficient proof of inability. Bronner v. Frauenthal, 37 N. Y., 166; Markoe v. Aldrich, 1 Abb. Pr., 55. When to be excluded.]-The deposition can not, however, be read, if it appear that the copy of the order and of the affidavit on which it was founded, was not served on the district attorney, as directed, or that the examination was in any respect unfair or not conducted as prescribed in this chapter. (§ 632.) There must be an opportunity to cross-examine. Hewlett v. Wood, 67 N. Y., 394; 7 Hun, 227. If consent given to read deposition, it can not be withdrawn. Beebe v. Peo., 5 Hill, 32. On reading deposition, what objections may be taken.]— Upon the reading of the deposition in evidence, the same objections may be taken to a question or answer contained therein, as if the witness had been examined orally in court. (§ 633.) Attendance of witness for examination, how compelled.]— The attendance of the witness may be enforced, by a subpoena subscribed by the officer, or issued under the seal of the court. (§ 634.) Disobedience of witness, how punished.]-Disobedience to the subpœna, or a refusal to be sworn or to testify, may be punished by the court or officer, as prescribed in section 619. (§ 635.) [ 49 ] 769 12. Compromising offenses. The rules on this subject, prescribed by the Revised Statutes, have been superseded by the Code of Criminal Procedure. (19) Examination of witnesses for the people, conditionally.]—If a witness for the people be required by the magistrate before the preliminary examination is had, to enter into an undertaking to appear and testify at the trial, refuses to comply with the order, the magistrate must commit him to prison until he comply, or be legally discharged. (Code Cr. Pro., § 218.) Where, however, it satisfactorily appears, by the examination on oath of the witness or of any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined, on behalf of the people, in the manner and with the effect provided in this Code, and must thereupon be discharged. (Id., § 219.) But the above section does not apply to the prosecutor, or to an accomplice in the commission of the crime charged. (Id., § 220.) A deposition taken conditionally, in the case of a charge for a criminal offense, and before indictment, which is entitled in the court of general sessions, where there is no suit or proceeding pending, and in a suit which has not yet been commenced, and which, throughout, refers to the accused not by their individual names, but as defendants, can not be read on the trial of an indictment afterwards preferred on that charge; because of the rule that on such a deposition the witness could not be convictel of perjury, for any false swearing. (People v. Chrystal, 8 Barb., 545.) (19) COMPROMISING CERTAIN CRIMES BY LEAVE OF THE COURT. What crimes may be compromised.]-When a defendant is held to answer, on a charge of a misdemeanor, for which the person injured by the act constituting the crime, has a remedy by a civil action, the crime may be compromised, as provided in the next section, except when it was committed, 1. By or upon an officer of justice, while in the execution of the duties of his office: 2. Riotously; or 3. With an intent to commit a felony. (Code Cr. Proc., § 663.) Compromise to be by permission of the court; order thereon. If the party injured appear before the court, to which the depositions and statement are required, by section 221, to be returned at any time before trial on an indictment for the crime, and acknowledge in writing that he has received satisfaction for the injury, the court may, in its discretion and on payment of the costs incurred, if it shall see fit so to direct, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom. But in that case, the reasons for the order must be set forth therein and entered upon the minutes. (Id., § 664.) Can not compromise after conviction. Peo. v. Bishop, 5 Wend., 111. Nor stay trial because civil action pending, but may sentence. Peo. v. Judges of Genesee, 13 Johns., 85. 13. Letting accused to bail. The provisions of the Revised Statutes, in respect to letting persons accused to bail, have also been superseded by the Code of Criminal Procedure, which contains the rules now in force. (20) Order a bar to another prosecution. -The order authorized by the last section is a bar to another prosecution for the same offense. (Id., § 665.) No other offense to be compromised, except as provided in this chapter.]-No crime can be compromised, nor can any proceeding for the prosecution or punishment thereof upon a compromise be stayed, except as provided in sections 663 and 664. (Id., § 666.) (20) BAIL. The Code of Criminal Procedure contains the following provisions respecting bail: 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. (§ 550.) Taking 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. (§ 551.) Eighth Amendt. Cons. U. S. Art. 1, § 5, N. Y. Const. The power to admit 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 under such circumstances, as that, if death ensue, the crime would be murder. (§ 552, as amended in 1882.) If facts do not sustain charge of murder contained in warrant, bail may be allowed. Peo. v. Sheriff of Westchester, 1 Park., 659; Peo. v. Porter, 8 Barb., 168; Peo. v, Beigler, 3 Park., 316; Peo. v. Baker, 10 How. Pr., 567; see also Peo. v. Collins, 20 How. Pr., 111. In what cases defendant may be admitted to bail, before conviction.]—If the charge be for any other crime, he may be admitted to bail, before conviction, as follows: 1. As a matter of right, in cases of misdemeanor. 2. As a matter of discretion, in all other cases. (§ 553.) Nature of bail before conviction. Bail by police officers.]Before conviction, a defendant may be admitted to bail : 14. Exceptions by defendants. By the act of 1872 (ch. 56), “relating to the settling, signing and sealing of bills of exceptions in criminal cases," it is provided (§ 1), 1. For his appearance before the magistrate on the examination of the charge, before being held to answer. 2. To appear at the court to which the magistrate is required by section two hundred and twenty-one to return the depositions and statements upon the defendant being held to answer after examination. 3. After indictment either upon the bench warrant issued for his arrest or upon an order of the court committing him or enlarging the amount of bail, or upon his being surrendered by his bail, to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial. And 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. The amount of bail taken by a captain or sergeant of police under this section must be as follows: If the offense be the violation of a corporation ordinance the amount of the bail must be one hundred dollars, except that if a conviction upon the charge would render the defendant liable only for 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 five hundred dollars. (The section gives the form of the undertaking.) (§ 554, as amended in 1882.) In what cases he may be admitted to bail, after conviction and upon appeal.-After the conviction of a crime not punishable with death, a defendant who has appealed, when there is a stay of proceedings, but not otherwise, may be admitted to bail: 1. As a matter of right, when the appeal is from a judgment imposing a fine only; 2. As a matter of discretion, in all other cases. (§ 555.) Nature of bail after conviction and upon appeal.]-After conviction and upon an appeal, the defendant may be admitted to bail, as follows: 1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal be dismissed; 2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed. (§ 556.) that it shall be the duty of the several justices of the supreme court, and of the county judges and justices of sessions in the several coun Who may admit to bail]-In the cases in which the defendant may be admitted to bail upon an appeal, as provided in section 556, the order admitting him to bail may be made, either by the court from which the appeal is taken, or the presiding judge thereof, or by the appellate court, or a judge thereof, or by a judge of the supreme court. (§ 583.) Notice of the application, when required.]-The court or officer to whom the application for bail is made may require such notice thereof as he deems reasonable, to be given to the district attorney of the county in which the verdict or judgment was originally rendered. (§ 584.) Qualifications of bail, and how put in.]-The sureties must possess the qualifications, and the bail must be put in in all respects, in the manner prescribed by sections 569 to 577, both inclusive; except that the undertaking must be to the effect that the defendant will, in all respects, abide the orders and judgment of the appellate court upon the appeal. (§ 585.) In misdemeanor, officer to take defendant before a magistrate.]-Where the crime charged in the indictment is a misdemeanor, the officer 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. (§ 578.) By what courts taken.]—The court of oyer and terminer has jurisdiction— To let to bail any person committed, before indictment found, upon any criminal charge whatever. (§ 22, sub. 8.) The courts of sessions 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 prison of the county, before indictment, for any offense triable in the court. (§ 39, sub. 10, 11.) BAIL UPON AN INDICTMENT, BEFORE CONVICTION. Duty of officer, in misdemeanors.]-When the crime charged in the indictment is a misdemeanor, the officer 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, (§ 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. (§ 579.) Taking bail, when offense is bailable.]-When the defendant is so delivered into custody, if the felony charged be bailable, and the |