be examined upon oath in like manner as the witnesses against him. 4 Bl. Com., 360. This modern rule, allowing to prisoners upon trial the right of introducing the testimony of witnesses upon oath, seems to be extended to and adopted in practice in examinations before justices of the peace. 1 Burn's Justice, 552. Mr. Chitty says, that it should seem that, upon the reasonable request of the defendant, the magistrate has a similar power to bring before him any witnesses who may be able to give material evidence in behalf of the prisoner that he has to require the attendance of witnesses on the part of the prosecution. 1 Chil. Crim. Law, 77.

It seemeth just and right, the justice of the peace who takes information against a felon or person suspected of felony, should take and certify as well such information, proof, and evidence as goeth to the acquittal or clearing of the prisoner, as such as makes against him. Dalt. Justice, 545. Though formerly his witnesses could not be examined upon oath, they are now placed on a footing with those whom the prosecutor adduces. 1 Chit. Crim. Law, 79.

By the constitution of this state, it is declared "That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his favor." Const., Art. VIII. Sec. 9.

The magistrate before whom any person shall be brought charged with any criminal offence, shall inquire into the truth or probability of the charge exhibited against such prisoner by the oath of all witnesses attending, and shall, upon consideration of the facts then proved, either discharge, bail, or commit him to jail; and, in cases requiring the presence of two justices to take the examination, they shall have power to discharge, bail, or commit, in case no good and sufficient bail is offered, according to the proof that is adduced, and the law arising thereon. Gale's Stat., 238.

And it is said that, if there be an express charge of felony, on oath, against the prisoner, though his guilt appear doubtful, the justice cannot discharge him, but must bail or commit, according to circumstances; and that, if a person be killed by another, though it be by misadventure or in self-defence, which is not felony but excusable homicide, yet the justice ought not to discharge him, for he must undergo his trial, and, therefore, he must be committed or bailed. 1. Chit. Crim. Law, 89. 2 Hale, 121. 1 Burn's Justice, 379.

The discretion conferred upon justices of the peace by the constitution and laws of this state, in cases of examinations for criminal offences, is much greater than was allowed to them by the common law, and, when properly exercised, secures to every individual a sure protection against oppression, and malicious and groundless prosecutions.

If, upon the examination of the whole matter, it manifestly appears that either no such crime was committed by any person, or that the suspicion entertained of the prisoner is groundless, it is lawful for the justice to discharge him without even requiring bail. 4 Bl. Com., 296. And a magistrate is clearly bound, in the exercise of a sound discretion, not to commit any one unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of credit. 1 Chit. Crim. Law, 89.

But, while justices of the peace ought not to require the accused to give bail or commit for the want thereof, where the evidence produced against him is unsatisfactory and insufficient to raise a reasonable presumption of the guilt of the accused of the crime charged; yet, on the other hand, they ought not to be too ready to discharge, for it is not supposed that so full an investigation can often be had, in these preliminary examinations, as upon a trial.

In England, the examination of the accuser, witnesses, and prisoner, in cases of felony and manslaughter, is principally regulated by statutes; 1 Chit. Crim. Law, 80; and, in taking the examination of the prisoners under the authority of those statutes, the magistrate is required to attend, with the most scrupulous exactness, to their directions; for, if the examinations are informally taken, they will not be admissable, or, at least, will not receive any additional sanction for those statutes, and which they would otherwise confer. 1 Chit. Crim. Law, 77. The provisions of these statutes have not been adopted in this state, except on the examination of fugitives from justice, and it is not usual in practice for justices to take the examination in writing. Although taken in writing, they could not be given in evidence on the trial of an indictment which might subsequently be found by a grand jury. 1 Chit. Crim. Law, 80.

The complainant and his witnesses must be ready to confront the accused on the examination, in whose presence the evidence must always be given, in order that he may have the advantage of cross examining the witnesses and contradicting their testimony. 1 Chit. Crim. Law, 79. 4 Bl. Com., 360. 3 Bl. Com., 373.

It is the usual course, when the prisoner is brought before the justice, to state to him the substance of the accusation and to read to him the warrant, or so much thereof as is necessary to inform him of the crime for which he has been arrested, and ask him whether he is guilty or not guilty. It has been doubted, however, whether the justice ought to require the prisoner to make any answer to the charge, for the reason that he can, regularly, do no more than examine the complainant and the witnesses produced on the part of the prosecution as well as by the prisoner, and thereupon discharge, bail, or commit, as he may determine as to the truth or probability of

the guilt of the prisoner. There are no decisions or authorities recollected, however, indicating which would be the more proper course.

In adopting the practice of asking the prisoner whether he is guilty or not guilty, the justice ought to caution him that he is not bound either to accuse himself or confess his guilt, and that any confession or admission of that nature may be produced in evidence against him on the trial. 1 Chit. Crim. Law, 85. At all events, no improper influence, either by threat, promise, or misrepresentation, ought to be employed; 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 made rather from a motive of fear or interest than from a sense of guilt. 2 Hale, 284. 4 Bl. Com., 357. To say that it will be better for him if he will confess, or worse if he will not, is sufficient to exclude the consequent declaration by the prisoner; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and, therefore, excludes the declaration, if any degree of influence has been exerted. And, when a confession has once been induced, by such means, all subsequent admissions of the same, or of the like facts, must be rejected, if they have resulted from the same influence. 2 Stark. Ev., 27. 15 Wend. Rep., 231. And it is the duty of the magistrate to prevent, if possible, the prosecutor and the officer who may have the prisoner in custody, from any attempts to obtain a confession of his guilt, for they are, sometimes, very officious in this way. The caution and delicacy usually observed by justices of the peace, in these cases, is highly creditable. Yet this reserved practice may be extended beyond the bounds which the strictest regard to the rights of the prisoner requires. It would seem that, when a prisoner is brought before a magistrate upon a criminal charge, of whatever nature it may be, there can be no reasonable objection in asking him whether he is guilty or not guilty. Davis' Justice, 72.

The justice should, also, be upon his guard against confessions uttered by collusion, as was the case where two brothers committed a robbery and fled. A younger brother, who was innocent, in order to favor their escape, when examined, dropped hints amounting to a constructive admission of his guilt. On this he was committed to prison, and the pursuit of the brothers discontinued. On his trial he proved an alibi, and obtained an easy acquittal, and, in the mean time, the actual felons escaped with their plunder. 1 Chit. Crim. Law, 85.

It is, perhaps, proper to consider the duty of justices of the peace in obtaining the evidence of accomplices.

The engagement of a justice to an accomplice that, if he will give his evidence, he may expect favor, is merely a per

sonal engagement, on his part, that he will recommend the accomplice to mercy; for a justice has no authority to promise him any favor or to tell him that he shall be a witness against others. A justice has no authority to select whom he pleases to pardon or prosecute, and a prosecutor has even less power, or, rather, pretence to select, than a justice of the peace. It is, merely, an equitable claim upon the government for a pardon from the justice's promise of an indemnity, upon condition of a full and candid disclosure. Yet, however faithfully the accomplice may comply with the condition, he cannot avail himself of the promise or inducements of the justice upon his trial. 1 Chit. Crim. Law, 83. The accomplice, therefore, may be deceived, and drawn in under the color and pretence of judicial authority and power of protection, to disclose what he is not bound to discover, and thus make himself the deluded instrument of his own conviction. Cowp., 331. However, in present practice, where accomplices make a full and fair confession of the whole truth, and are, in conseqence, admitted to give evidence for the people, if they afterwards give their testimony fairly and openly, although they are not entitled to pardon, the usage, lenity, and practice of the court is, to stay the prosecution against them. Leach, 140. Cowp., 339.

The justice of the peace should bear in mind, that the testimony of these accomplices must, from its very nature, be regarded with great jealousy and suspicion, and that their testimony, unless materially corroborated by other evidence, is of very little weight or value in the prosecution. 1 Hale, 305. In practice, it is usual to direct the jury to acquit the prisoner where the evidence of an accomplice stands uncorroborated by material circumstances; but, it is said this is a matter resting entirely in the discretion of the court. 2 Stark. Ev., 12.

The witnesses, especially if they appear unwilling, should be examined separately, and no one who has already passed his examination should be permitted, if it be possible to avoid it, to inform any other, who has yet to undergo that process, to what particulars his discoveries have extended. By this means, a conspiracy to overwhelm a prisoner will, probably, be detected, and undue motives to favor him, from interest or pity, will be prevented from obstructing the progress of justice. 1 Chit. Crim. Law, 80.

The court may indulge a prisoner in examining the witnesses apart, but he cannot deinand it of right. 1 Burn's Justice, 553.

CHAPTER VI.

1. of the disCHARGE; 2 OF BAIL AND RECOGNIZANCE; 3. OF THE MITTIMUS; 4. OF RECOGNIZANCE TO GIVE EVIDENCE; 5. OF BAIL after the COMMITMENT.

1. Of the discharge.

THE examination of a prisoner, when brought before a justice of the peace, charged with having committed a criminal offence, was formerly an ex parte inquiry, and the prisoner was not allowed the benefit of counsel or the privilege of introducing any exculpatory evidence. And, if an express charge of felony, on oath, against the prisoner, was made, though his guilt appeared doubtful, yet the justice could not wholly discharge him, but must have bailed or committed him. 2 Hale, 121. And, if a person was brought before a justice charged with having committed a felony, or upon suspicion thereof, though it appeared to the justice that the prisoner was not guilty, it seems to have been the duty of the justice to commit him to prison, or, at least, to join with some other in the bailment of him, to the end the party may be discharged by a lawful trial. Dall. Justice, 540. This rule, however, has been modified, and the justice is not required to commit any one unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of credit. 1 Barn. & Cres., 50.

Under the statutes of this state, this proceeding, in some measure, seems to partake of the nature of a trial. It appears to be clearly the duty of the justice, when the prisoner is brought before him, to examine the complainant and the witnesses in support of the prosecution and the prisoner's witnesses, and to determine as to the truth or probability of the guilt of the accused. A discretion is confided to him,after hearing the evidence and upon consideration of the facts and circumstances, to bail, commit, or discharge the prisoner from custody; and, where the charge is for sodomy, rape, arson, burglary, robbery, forgery, or counterfeiting, the two justices authorized to take the examination have power to bail, commit, or discharge the prisoner, according to the proof that is adduced and the law arising thereon. Gale's Stat., 238.

It would not, however, be necessary that the guilt of the accused should be proved as fully and conclusively upon an examination before a justice of the peace as it would be upon the traverse of an indictment before a jury. But the justice should be satisfied that there is a reasonable presumption that