5226 (4277) (4661) (3991) (442). Same; presumption in fixing amount of bail.-When the bail is taken under the provisions of the last two sections, the officer or magistrate, in fixing the amount of bail, must act on the presumption that the offense is of an aggravated nature. 5227 (4278) (4662) (3992) (443). Undertaking and warrant returned to court.-The magistrate admitting the defendant to bail, under the provisions of section 5225 (4276), must certify the same upon the warrant, and deliver such warrant, with the undertaking, to the officer who executed the warrant; who must cause the same to be delivered, without unnecessary delay, to the clerk of the court in which the defendant is bound by his undertaking to appear. ARTICLE 4. PRELIMINARY EXAMINATION AND ITS INCIDENTS. 5228 (4279) (4693) (4023) (474). Magistrate may associate others with him.-Any magistrate to whom complaint is made, or before whom any defendant is brought charged with a public offense, may associate with himself one or more magistrates of equal grade; and the powers and duties in this chapter prescribed may be executed and performed by them. In preliminary proceedings justices and notaries ex officio justices have jurisdiction coextensive with the county, and may sit out of their beats.-Ex parte Davis, 95 Ala. 9; Boyton's case, 77 Ala. 29; Matthews's case, 96 Ala. 62. 5229 (4280) (4673) (4003) (454). Adjournment of examination; defendant bailed or committed ad interim, etc.-When a defendant is brought before a magistrate, under a warrant of arrest, for examination, such magistrate may adjourn the examination from time to time, as may be necessary, not exceeding ten days at one time, without the consent of the defendant, and to the same, or a different place in the county; and, in such case, if the defendant is charged. with a capital offense, he must be committed to jail in the meantime; but if the offense is not capital, he may give bail, in such sum as the magistrate directs, for his appearance for such further examination, and for the want thereof must be committed; and on the day to which the examination was adjourned, he may be brought before the magistrate by his verbal order to the officer who had charge of him, or by order in writing to a different person, if the custody has been changed. When recognizance void for uncertainty.-Allen's case, 33 Ala. 422. - 5230 (4281) (4674) (4004) (455). Default of defendant admitted to bail certified to court; proceedings thereon.-If the defendant does not appear before the magistrate at the time to which the examination is adjourned, he must certify the default on the undertaking of bail, and return the same to the next circuit or city court of his county; and the like proceedings must be had thereon as up on the breach of an undertaking in that court, the certificate of the magistrate being presumptive evidence of the default of the defendant. 5231 (4282) (4675) (4005) (456). On failure of magistrate to attend, another may act in his stead.-If the magistrate adjourning the examination fails to attend on the day to which such examination is adjourned, any other magistrate of the county may attend. in his place and proceed with the examination, or, if the defendant fails to appear, enter his default, and certify the same, with the undertaking of bail, to the next circuit or city court of the county, according to the provisions of the preceding sections; and the like proceedings may be had thereon as if certified by the magistrate taking the same. Ex parte Davis, 95 Ala. 9; Matthews's case, 96 Ala. 62. 5232 (4283) (4676) (4006) (457). Alias warrant of arrest.—On the failure of the defendant to appear, the magistrate certifying the default, or any other magistrate, may issue another warrant of arrest, upon which the same proceedings may be had against the defendant as on the original warrant. 5233 (4284) (4677) (4007) (458). Examination; how conducted. The magistrate before whom any person is brought, charged with a public offense, must, as soon as may be, examine the complainant and the witnesses for the prosecution, on oath, in the presence of the defendant; and after the testimony for the prosecution is heard, the witnesses for the defendant must be sworn and examined. 5234 (4285) (4678, 4679) (4008, 4009) (459, 460). Right of defendant to appear by counsel; examination, how conducted.-The defendant may appear by counsel, and the magistrate may, on application, direct the witnesses for the prosecution or defense, or both, to be kept separate, so that they cannot hear the evidence, or converse with each other until examined; such examination is under the control of the magistrate, and should be so conducted as to elicit the facts of the case. 5235 (4286) (4679) (4009) (460). Testimony of witnesses reduced to writing and subscribed. The evidence of the witnesses examined must be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively. Matthews's case, 96 Ala. 62. 5236 (4287) (4680) (4010) (461). When defendant must be discharged. Upon the whole evidence, if it appears to the magistrate that no offense has been committed, or that there is no probable cause for charging the defendant therewith, he must be discharged. Discharge on preliminary examination does not bar subsequent arrest and examination.-Ex parte Crawlin, 92 Ala. 101; Nicholson's case, 72 Ala. 176; Robinson's case, 108 Ala. 161. 5237 (4288) (4681) (4011) (462). If probable cause shown, discharged on bail, or committed.-If it appears that an offense has been committed, and there is probable cause to believe that the defendant is guilty thereof, he must be discharged, if the offense is bailable, upon giving sufficient bail; but if sufficient bail is not given, or if the offense is not bailable, he must be committed to jail by an order in writing. The accused having had preliminary examination and bail fixed, is no bar to further arrest or examination, nor is he thereby entitled to bail after indictment.-Robinson's case, 108 Ala. 161, overruling Skelton's case, 104 Ala. 98. As to what constitutes probable cause, see Lunsford v. Dietrich, 93 Ala. 565; Jordan v. A. G. S. R. Co., 81 Ala. 220. 5238 (4289) (4682) (4012) (463). Form of commitment after preliminary examination.-The commitment may be, in substance, as follows: "The State of Alabama, To the jailer of county: On the examination of A. B., charged with the offense of murder (or other offense, as the case may be, describing it by name, or so that it may be clearly inferred), it appearing that such offense has been committed, and that there is sufficient cause to believe that A. B. is guilty thereof, you are, therefore, commanded to receive him into your custody, and detain him until he is legally discharged. Dated this day of 18-. C. D., Justice of the Peace (or other officer, as the case may be)." 5239 (4290) (4683) (4013) (464). The defendant, if committed, may elect to perform hard labor for county; duties of officers. If the defendant is charged with a misdemeanor, and is ordered to be committed to the county jail, he may elect to perform hard labor for the county pending his trial. It shall be the duty of the magistrate committing him to inform him of his right to make such election, and of the advantages accruing to him thereby; and if he so elect, it shall be the duty of the magistrate to make an order allowing him to do so, and to certify that fact to the court at which he is required to appear. It shall be the duty of the sheriff to carry every person in his custody charged with a misdemeanor before the judge. of probate, or, if he is absent, before the clerk of the circuit court, within twelve hours after receiving such person in custody; and it shall be the duty of such judge or clerk to inform such prisoner of his right to make such election, and of the advantage accruing to him thereby; and if he shall elect to perform such hard labor, such judge or clerk shall make an order allowing him to do so, and shall certify that fact to the court at which he is required to appear; and if he is convicted when tried, it shall be the duty of the court, in determining his punishment, to take into consideration the amount of labor performed by him. It shall be the duty of each justice of the peace and notary public to render to the grand jury of the county, on the first day of each term of the circuit or city court, a statement, in writing and under oath, of the name of each defendant charged with a misdemeanor committed by him, the date of such commitment, and whether or not he gave such defendant the information required by this section. It shall be the duty of the sheriff to render to the grand jury of his county, on the first day of each term of the circuit court, a statement, in writing and under oath, setting forth the name of every person charged with a misdemeanor coming into his custody since his last preceding statement, when he received such defendant, and when he carried him before the judge of probate, or clerk of the circuit court, as provided by this section. It shall be the duty of the judge of probate and clerk of the circuit court to render to the grand jury of the county, on the first day of each term of the circuit court, a statement, in writing and under oath, of the name of each defendant brought before them by the sheriff under this section, of the date when he was so brought before them, and whether or not they gave him the information required by this section. Giles's case, 52 Ala. 29; Avery's case, Ib. 340. 5240 (4291) (4684) (4014) (465). Bail taken by sheriff on commitment for bailable offense.-Whenever a person is committed to jail for a bailable offense, under the provisions of this chapter, the magistrate must indorse on the commitment the amount of bail required, and sign his name thereto; and the sheriff of the county to which he is committed may discharge him on giving sufficient bail in the amount so indorsed; and must, in such case, return the undertaking to the court to which such person is bound to appear, within five days thereafter. Any justice of the peace who fails to fix the amount of bail and to indorse the same on the mittimus, as required by this section, must, on conviction, be fined not more than fifty dollars. Antonez's case, 26 Ala. 81; Evans's case, 63 Ala. 195. 5241 (4292) (4685) (4015) (466). Witness bound over to court. The magistrate must also require the witnesses for the prosecution to enter into an undertaking, in the sum of one hundred dollars each, to appear and testify at the court having cognizance of the offense; and, if requested by the defendant, may require his witnesses to enter into such undertaking. Calhoun's case, 99 Ala. 279. 5242 (4293) (4686, 4687) (4016, 4017) (467, 468). Form of undertaking of witness when bound over to court on preliminary examination.-The undertaking of the witnesses for the prosecution or defense may be, in substance, as follows: "The State of Alabama, We, A. B., C. D. and E. F., witnesses county. against (or for, as the case may be) G. H., charged with a public offense, do each agree to appear at the next circuit (or city) court of county, to give evidence against (or for, as the case may be) him, and, failing so to do, to pay to the State of Alabama (or to the said G. H., if the undertaking is for the defendant's witnesses) one hundred dollars. Dated this day A. B. C. D. E. F. Taken by L. M., Justice of the Peace (or as the case may be)." 5243 (4294) (4688) (4018) (469). When surety for appearance required of witness.-Whenever the magistrate has good reason to believe that a witness for the prosecution will not appear to testify, he may order such witness to enter into an undertaking to appear and testify in a larger sum, and with sufficient sureties; but such surety must not be required from any witness who does not reside. in this state, and within fifty miles of the place where the examination takes place. Calhoun's case, 99 Ala. 279. 5244 (4295) (4689) (4019) (470).. When surety required of minors and married women.-Married women and minors, when material witnesses for the prosecution, may also be required, in the discretion of the magistrate, to procure sureties, who will undertake for their appearance to testify. 5245 (4296) (4690) (4020) (471). Commitment of witness on default of undertaking.-Any witness required to enter into an undertaking, with or without surety, must, on failure or refusal, be committed to jail. 5246 (4297) (4691) (4021) (472). Discharge by sheriff.-In such case, the magistrate must state in the commitment the amount of the undertaking, and whether surety is required; and the witness must be discharged by the sheriff, on entering into the undertaking as required. 1889, p. 68. 5247 (4298) (4692) (4022) (473). Magistrate must report to Feb. 28. solicitor or grand jury on the second day of each term of circuit or city court; penalty for failure.-When any person is held by a justice of the peace, or other magistrate, to answer an indictment for a public offense, it is the duty of such justice of the peace, or other magistrate, to return to the solicitor or the foreman of the grand jury, on the second day of the term of the court to which such person is held to answer, the affidavit and warrant of arrest, with a transcript of the docket and a list of the state's witnesses and all undertakings of bail by parties or witnesses in the case; and any justice of the peace, or other committing magistrate, failing to do so may be compelled by rule of court, and, in case of disobedience, by attachment, and is also guilty of a misdemeanor. When there has been no such committal since the last term of the circuit or city court, the justice of the peace, or other magistrate, must, at the time herein specified, report that fact in writing to the grand jury of such court. Matthews's case, 96 Ala. 62. CHAPTER 179. PRIZE-FIGHTING. 5248-5250. 5248 (3770) (4313). Prize-fighting.-Any person, who shall voluntarily engage in a pugilistic encounter between man and man, or |