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CHAPTER I.

BAIL.

ARTICLE I. In what cases the defendant may be admitted to

Bail.
II. Bail, upon being held to answer, before indictment.
III. Bail, upon an indictment, before conviction.
IV. Bail, upon an appeal.
V. Deposit, instead of bail.
VI. Surrender of the defendant.
VII. Forfeiture of the undertaking of bail, or of the

deposit of money.
VIII. Re-commitment of the defendant, after having

given bail, or deposited money instead of bail.

ARTICLE I.

IN WHAT CASES THE DEFENDANT MAY BE ADMITTED TO BAIL.

SEC. 550. Admission to bail, defined.

551. Taking bail, defined.
552. Offenses not bailable.
553. In what cases defendant may be admitted to bail,

before conviction.
554. In what cases he may be admitted to bail, after con.

viction and upon appeal.
555. Nature of bail before conviction.

536. Nature of bail after conviction and upon appeal. $ 550. 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.

§ 551. 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.

Eighth Amendt. Cons. U. S. Art. 1, 55, N.Y. Const. The power to admit to bail is incident to power to hear and determine. Peo. v. Van Horne, 8 Barb., 158 ; Peo. v. Shattuck, 6 Abb. N. C., 33.

$ 552. Offenses not bailable. The defendant cannot 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.

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; Peó. v. Baker, 10 How. Pr., 567; see also, Peo. v. Collins, 20 How. Pr., 111.

§ 553. When 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.

§ 554. When he may be admitted to bail, before conviction, generally:-Before conviction, a defendant may be admitted to bail,

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 221, 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 bai, 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 two hundred dollars. In all other cases the amount of bail must be five hundred dollars. The form of the undertaking must be as follows: We A. B., defendant and residing at number

, in and C. D., defendent,* residing at, hereby jointly and severally undertake that the above A. B., defendant, shall appear and answer the complaint (describing it briefly) before the magistrate before whom he would be arraigned if not bailed on the day of eighteen hundred and at o'clock, to answer to the complaint, and there remain to answer, subject to any order of the magistrate, and render himself in execution thereof, or if he fail to perform either of these conditions, then he will pay to the people of the state of New York the sum of

§ 555. Nature of bail before conviction. After the conviction of a crime not punishable with death, a defendant who has appealed, and 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.

§ 556. 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.

ARTICLE II.

BAIL, UPON BEING HELD TO ANSWER, BEFORE INDICTMENT. SEC. 557, 558. By what courts or magistrates deiendant may be

admitted to bail
10

* Sic.

559. At what time defendant may be admitted to bail by a

magistrate. 560. In cities, if crime be felony, application for admission

to bail must be on notice. 561. Form of order, if made by the court. 562. Form of order, if made by a magistrate. 563. If application be denied by a magistrate, no subse

quent application can be made to another magis

trate. 564. Violation of last section a misdemeanor. Admissior

to bail in such case, how revoked or vacated. 565. Construction of last two sections. 566. Decision final. 567. Bail, by whom taken. 568. How put in; and form of undertaking. 569. Qualifications of bail. 570-572. Bail, how to justify. 573. Bail may be examined as to sufficiency. 574. Other testimony may be received as to their suffi.

ciency. 575. Decision as to their sufficiency; and filing affidavits

of justification and undertaking. 576. On allowance of bail, and execu:ion of undertaking,

defendant to be discharged. Form of discharge. 577. If bail disallowed. § 557. Who may admit to bail. When the defendant has been held to answer, as provided in section 208, the admission to bail may * by the magistrate by whom he is so held, if he be one of the magistrates mentioned in section one hundred and forty-seven, 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 cenviction, as provided in section 554.

Peo. v. Dutcher, 83 N. Y., 240. § 558. Id. — When, by reason of the degree of the crime, the committing magistrate has not authority to adınit 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.

$ 559. When magistrate may bail.— The defendant may be admitted to bail by a magistrate, as provid. ed in the last two sections, upon being held to answer,

* Sic.

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 second subdivision of section 557.

Court alone can bail while in session. Ex Parte Babcock, 2 Abb. Pr. N. S., 204. See Peo. v. Clews, 77 N. Y., 39; Peo. v. Mean, 28 Huil, 2:27 ; s. C., 92 N. Y., 415 ; Peo. v. Sherwin, 17 W. D., 125.

§ 560. When must be on notice. In the several cities of this state, if the crime charged be a felony, the application for admission to bail must be upon notice of at least two days, to the district attorney of the county, unless the magistrate by order fixes a shorter time; and the committing magistrate, upon the like notice, in writing, requiring him to do so, must transmit the depositions and statement, or a copy thereof, to the court or magistrate to whom the application for bail is to be made.

$ 561. Form of order made by the court. — If the application be to the court, an order must be made, granting or denying it, and if it be granted, stating the sum in which bail may be taken.

§ 562. Form of order made by a magistrate.- If the application be to a magistrate, he must certify, in writing, his decision granting or denying the same; and if he grant the application, must state in the certificate the sum in which bail may be taken ; which certificate he must cause to be forthwith filed with the clerk of the court to which the depositions and statement are required to be sent.

§ 563. If application be denied.- If an application for admission to bail, made to a magistrate, be denied, not more than two subsequent applications therefor can be made to other magistrates, except that an application can be made to any magistrate mentioned in subdivision two of section 557, if no application has been previously made to a magistrate mentioned therein.

See Peo, v. Cunningham, 3 Park., 531. $ 564. Violation of last section.-A violation of the last section is punishable as a misdemeanor, and the admission of the defendant to bail contrary thereto may be revoked by the magistrate who made it, or vacated by the court to which the depositions and statement are or must be sent, as provided in section 221, or to which, after indictment, the action must be sent for trial.

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