tion had been had, and it appeared to the magistrate that an offence had been committed, and that there was probable cause to believe the prisoner to be guilty thereof.1 Justices of the peace, upon examinations before them upon complaints made before them in criminal cases, have no power to commit persons for refusing to be sworn as witnesses.2 § 11. PRISONER TO BE EXAMINED. 3 The complainant and witnesses for the prosecution having been examined, the magistrate shall then proceed to examine the prisoner in relation to the offence charged. Such examination shall not be on oath, and before it is commenced the prisoner is to be informed of the charge made against him, but whenever a prisoner charged with a misdemeanor shall be brought before a magistrate, he is not required to take the examination of such prisoner except where such magistrate shall deem it material so to do, or where such examination shall be required by the prisoner.4 The witnesses produced on the part either of the prosecution or of the prisoner, are not to be present at the examination of the prisoner.5 If there be more than one person accused, it is of evident importance that all of them should be examined apart, in order that an opportunity may be afforded of detecting any variations in their story. In order also to prevent any communication between them previous to the examination, it will be prudent to give special directions to the keepers to confine them in different parts of the prison. If the examination of the prisoner be taken upon oath, it will not be receivable in evidence." With respect to the manner of taking the examination, it is to be observed that the very essence of it consists in being free and voluntary, and that the ingenious and often complicated questions of a man in an official station, to a prisoner vibrating between hope and fear, whose mind is in a state of perturbation, are not ' Ros. Cr. Ev., 6th ed., 55; 1 Stark. N. P., 242; 7 C. & P., 177; 9 C. & P., calculated to obtain that object. The examination should, therefore, assume the narrative form. The prisoner should be allowed to tell his story free from any restraint, and not by subtle and intricate questions involve him in a greater crime than he was supposed to have committed. Questions of course may be asked, but they should be for the development of truth, and not for the purpose of eliciting a contradiction.1 § 12. PRISONER TO BE ALLOWED COUNSEL. The prisoner is to be allowed a reasonable time to send for and advise with counsel, and if desired by the person arrested, his counsel may be present during the examination of the complainant and the witnesses on the part of the prosecution, and during the examination of the prisoner.2 § 13. CAUTION TO THE PRISONER BY MAGISTRATE. At the commencement of the examination the prisoner is to be informed by the magistrate that he is at liberty to refuse to answer any question that may be put to him.3 The above is a provision of our statutes, and it is the practice to generally caution the prisoner that he is not bound to accuse himself, and that any admission he may make may be produced against him on his trial. The English statute requires the magistrate to say to the prisoner words to the like effect: "Having heard the evidence, do you wish to say anything to the charge? You are not obliged to say anything unless you desire to do so; but whatever you do say will be taken down in writing, and may be given in evidence against you upon your trial."5 § 14. PRISONER'S ANSWER TO BE IN WRITING. The answer of the prisoner to the several interrogatories shall be reduced to writing by the magistrate or under his direction; they shall be read to the prisoner, who may correct or add to Peo. v. Smith, 1 Wheel. Cr. Cases, 58, note. 22 R. S., 708, § 14. 2 R. S., 708, § 15. Rex v. Green, 5 Carr. & P., 312. 11 & 12 Vict., ch. 42, § 16; Vide Peo. v. Hendrickson, 1 Park., 416; Peo. v. McMahon, 2 Id., 669. them, and when conformable to what he declares is the truth they are to be certified and signed by the magistrate.1 The examination of a prisoner, when reduced into writing, ought to be read over to him, and tendered to him for his signature, but it is not necessary in order to make it evidence that it should be signed by him.2 The magistrate cannot be too careful in the observance of the sections of the statute applicable to the examination of the prisoner himself. If properly taken it is often of great service to the district attorney, upon the trial of the accused upon an indictment, as evidence against the prisoner;3 and while a voluntary statement, made by the prisoner himself and admissable as evidence against him, may often supply the necessary link in the chain of evidence necessary to secure a conviction, the magistrate should not forget that the prisoner has still rights as a citizen, and carefully refrain from any improper influence, either by threat, promise or misrepresentation; for however slight the inducement may have been, a confession so obtained cannot be received in evidence on account of the uncertainty and doubt whether it was not made rather from a motive of fear or interest than from a sense of guilt.4 § 15. PRISONER'S WITNESSES TO BE EXAMINED. After the examination of the prisoner is completed, his witnesses, if he have any, shall be sworn and examined, and he may have the assistance of counsel in such examination.5 Upon the request of the defendant, the magistrate has the same power to bring before him any witnesses whose testimony may be material in his behalf that he has to cause the attendance of witnesses for the complainant, and their attendance may be enforced in like manner by process of subpoena and attachment." 1 § 16. SEPARATION OF THE WITNESSES. During the progress of the examination, while any witness is 2 R. S., 708, § 16. ' Peo. v. Johnson, 1 Wh. Cr. Cases, 193; 2 Leach, 625. Ros. Cr. Ev., 6th ed., 60, 61. 1 Leach, 263, 291, 386; 2 Hale, 284; 4 Blac. Com., 357; Phil. Ev., 50, 51, 52; 2 Hawk. C., 46, § 36; 10 Pick., 477; 1 Ry. & M. C. C., 27, 186, 432; 4 C. & P., 550; Id., 543; 6 Id., 177; 5 Id., 535.2 R. S., 708, § 17. ' 12 Wend., 344; 1 Chit. Cr. L., 76; Wallace Rep., 23. C. P.-13. under examination, the magistrate has power to exclude from the place in which such examination is had all the witnesses who have not been examined, and may cause the witnesses to be kept separate, and prevented from conversing with each other until they shall have been examined.1 This was also the rule at common law, and its propriety will be at once observed as a method of detecting and preventing not only conspiracies against the prisoner, but efforts by like conspiracy to secure his release, and thus obstructing the due admintration of public justice. § 17. EVIDENCE TO BE REDUCED TO WRITING. The evidence given by the several witnesses examined shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses respectively.2 § 18. PRISONER, WHEN TO BE DISCHARGED. The examination having been concluded by the magistrate, if, upon an examination of the whole matter, it shall appear to the magistrate either that no offence has been committed by any person, or that there is no probable cause for charging the prisoner therewith, he shall discharge the prisoner.3 This was the common law rule, for if, upon the examination of the whole matter, it manifestly appeared either that no such offence was committed by any person, or that the suspicion entertained of the prisoner was wholly groundless, it was lawful for the magistrate totally to discharge him, without even requiring bail.4 To authorize a commitment, the same proof is not required which would be necessary to convict a person on the trial in chief, but the committing magistrate will require that probable cause be shown. Probable cause is a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged. When such cause is shown, it can be done away only by its appearing that no such crime has been committed, or that the suspicion entertained of the prisoner is wholly groundless.1 Upon this examination or primary hearing, the magistrate is required to act judicially in the exercise of his understanding and judgment, with a proper consideration of all the evidence adduced in such examination, and of the law relative to the case. To the extent of this inquiry the magistrate is the judge of the law and the facts. On the supposition that certain facts have been proved as alleged against the defendant, he may decide that they do not constitute any offence at law, and in forming his judgment he may thus determine the construction and meaning of a statute in respect to its application to the particular case before him. His first duty is to see that the offence charged is an offence contrary to the statute or common law; and secondly, that the facts present a case made out by proof, furnishing good reason to believe that the crime alleged has been committed by the party charged. A prudent magistrate, however, will take care that an uncertain doubt on his mind as to a point of law, should not operate to an absolute discharge of the accused, so as perhaps to cause the escape of a criminal, but he will rather so order his proceeding in the case that the matter may be adjudicated upon by a higher tribunal in the ordinary forms of law.3 It is the duty of the magistrate in this stage of the proceedings to ascertain first, whether the crime alleged has been committed, and whether committed in the manner, and with the circumstances alleged; and secondly, if the crime has been so committed, whether there is a reasonable ground to believe that the party accused may have committed it, so as to demand a further inquiry, and for which the party should be sent to stand his trial upon the charge preferred. And as on the one hand the magistrate would act contrary to the principles of reason and justice, and in violation of his duty, if he were to commit the party to prison against the clear conviction of his own understanding, and the obvious and inevitable conclusion of common sense, yet on the other hand he is bound not to discharge the prisoner unless he is perfectly satisfied that there is no sufficient ground for judicial inquiry.* 1 U. S. v. Burr, Sergeant's Const. Law, 242. 1 Arch. Cr. Pl., § 45, note; Recorder Vaux's Decisions, Phil., p. 94. Barb. Cr. L., 2d ed., 565; 1 N. & Walsh, 369; 1 Dow. & Ry., 90; 2 Burn., |