$212. Order for bail, on commitment.- If the crime be bailable and the defendant be admitted to bail, but bail have not been taken, the following words, or words to the same effect, must be added to the indorsement mentioned in section two hundred and eight, "and that he be admitted to bail in the sum of dollars, and be committed to the sheriff of the county of [or in the city and county of New York, "to the keeper of the city prison of the city of New York,"] until he gives such bail.

§ 213. Form of commitment. If the magistrate order the defendant to be committed, as provided in sections two hundred and nine and two hundred and twelve, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or if that officer be not present, to a peace officer, who must immedi ately deliver the defendant into the proper custody, together with the commitment.

$214. Form of commitment. The commitment must be to the following effect:

"COUNTY OF ALBANY [or as the case may be].

"In the name of the people of the State of New York:

"To the sheriff of the county of Albany" [or in the city and county of New York, "to the keeper of the city prison of the city and county of New York"].

"An order having this day been made by me, that A. B. be held to answer to the court of upon a charge of [stating briefly the nature of the crime], you are commanded to receive him into your custody, and detain him until he be legally discharged.

"Dated at the City of Albany [or as the case may be], this day of

18

"C. D., "Justice of the Peace." [Or as the case may be.]

In People v. Johnson, 110 N. Y. 134, 142, one of the commitments recited that defendant was held on a charge of "burglary in the third degree"; another that he was held upon a charge of "grand larceny in the first degree." Held, these statements were a substantial compliance with the provision of the section; that a reference to the statutory definition of the crime showed, with sufficient clearness and precision for the purpose in view, the nature of the crime.

215. Undertaking of witnesses to appear; when and how taken. — On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people, a written undertaking, to the effect that he will appear and testify at the court to which the depositions and statement are to be sent, or that he will forfeit the sum of one hundred dollars.

§ 216. Security for appearance of accomplice as witness. When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness is an accomplice in the commission of the crime charged, he may order the witness to enter into a written undertaking with such sureties, and in such sum, as he may deem proper, for his appearance as specified in the last section.

217. Witness under sixteen.- Children under the age of sixteen years, when witnesses, may be committed as provided by section two hundred and ninety-one of the Penal Code, subject to the order of the trial court. [Amended 1892, ch. 279; in effect Sept. 1, 1892.

§ 218. Witness to be committed on refusal to give security for appearance.- If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the magistrate must commit him to prison until he comply or be legally discharged.

$219. Witness may be conditionally examined on behalf of people. A witness may be conditionally examined on behalf of the people in the manner and with the effect provided by title twelve, chaptert hree of this Code, for taking examination of witnesses conditionally on behalf of the defendant. A copy of the order and affidavit upon which the application ist made, together with notice of the time and place where the examination is to be taken, shall be served on the defendant, and his counsel, if he have any, at least two days before the time fixed for such examination, and the defendant may be present personally upon such examination to confront the witness produced against him, if the defendant have no counsel the order shall contain a provision assigning counsel to him for the purpose of such

examination, upon whom a copy of said order, affidavit and notice shall be served.

§ 220. Repealed in 1883, chap. 416, § 4.

§221. Magistrate to return depositions, statements and undertakings of witnesses, to the court.-When a magistrate has discharged a defendant, or has held him to answer, as provided in sections two hundred and seven and two hundred and eight, he must return to the next court of oyer and terminer or court of sessions of the county, or city court having power to inquire into the offense by the intervention of a grand jury, at or before its opening on the first day, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by him.

TITLE IV.

OF PROCEEDINGS AFTER COMMITMENT, AND BEFORE

INDICTMENT.

CHAPTER L Preliminary provisions.

IL Formation of the grand jury; its powers and duties.

CHAPTER I.

PRELIMINARY PROVISIONS.

SECTION 222. Crimes; how prosecuted.

8222. Crimes; how prosecuted. All crimes prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment.

State Const., art. I, § 6; Fed. Const., art. V.

The right to be charged by indictment or presentment is a fundamental right of a party which cannot be waived by him so as to deprive such party of afterward setting up the want of jurisdiction in the court to try him.

Matter of McCluskey, 40 Fed. Rep. 71; 12 Cr. L. Mag. 210.

CHAPTER II.

FORMATION OF THE GRAND JURY, ITS POWERS AND DUTIES.

SECTION 223, 224. Grand jury defined.

225, 226, 227. For what courts to be drawn; the order

228. Misdescription.

229. Mode of selecting grand jurors.

230. If sixteen grand jurors do not appear, additional number to be ordered.

231, 232, 233. Manner of designating the additional grand jurors. 234. Summoning the additional grand jurors, and compelling their

attendance.

235. When new grand jury may be summoned for the same court.

236. Grand jury, how drawn when more than a sufficient number

attends.

237. Who may challenge an individual grand juror.

238. Causes of discharge of the panel.

239. Causes of challenge to an individual grand juror.

240. Manner of taking and trying the challenges.

241. Decision upon the challenge.

242. Effect of allowing a challenge to an individual grand juror.

243. Violation of last section

244. Appointment of foreman.

245, 246, 247. Oath of the foreman and the other grand jurors.

248. Charge of the court.

249. Retirement of the grand jury.

250. Appointment of a clerk, and his duties.

251. Discharge of the grand jury.

252. Power of grand jury to inquire into crimes, etc.

253. Foreman may administer oaths.

254. Definition of indictment.

255. Evidence receivable before the grand jury.

256. Same.

257. Grand jury not bound to hear evidence for the defendant, but

may order explanatory evidence to be produced.

258. Degree of evidence to warrant an indictment.

259. Grand jurors must declare their knowledge as to commission of a crime.

260. Grand jury must inquire as to persons imprisoned on criminal charges and not indicted; the condition of public prisons, and the misconduct of public officers.

261. Grand jury entitled to access to public prisons, and to examine public records.

262, 263, 264. When and from whom they may ask advice, and who may be present during their sessions.

265. Secrets of the grand jury to be kept.

266. Grand jury; when bound to disclose the testimony of a witness. 267. Grand juror not to be questioned for his conduct as such.

§ 223. Grand jury defined. A grand jury is a body of men, returned at stated periods from the citizens of the county, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county.

See 12 Am. St. 900, note; 1 Chic. Leg. News, 20; 4 Crim. L. Mag. 471; 8 id. 711; 27 Can. L. J. 4; 9 Amer. & Eng. Ency. of Law, 1.

In Matter of Bain, 121 U. S. 1, the court say: "The importance of the part played by the grand jury in England cannot be better illustrated than by the language of Justice Field, in a charge to a grand jury, reported in 2 Sawy. 667. 'The institution of the grand jury,' he says, 'is of very ancient origin in the history of England - it goes back many centuries. For a long period its powers were not clearly defined; and it would seem, from the accounts of commentators on the laws of that country, that it was at first a body which not only accused, but which also tried, public offenders. However this may have been in its origin, it was at the time of the settlement of this country an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name; until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare, upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.'”

"The grand jury is merely an appendage of the court, of which the judge is the head or controlling power." Thomp. Trials, § 168.

In People, ex rel., v. Sheriff, 11 Civ. Proc. Rep. (County Ct. Chautauqua County), it is said that the grand jury "is no part of the court; the court can exist without it."

But in Matter of Choate (Gen. Term, 1st Dept.), 41 Alb. L. J. 287, Barrett, J., said: "It is clear from the elementary writers, and from what the court of appeals implied in the Hackley Case, 24 N. Y. 78, that the grand jury room is an enlargement of the court-room and part of the court sitting.

*** In People v. Naughton, Mr. Justice Pratt held that the grand jury was a constituent part of the court of oyer and terminer, and that its pro