« ForrigeFortsett »
and those who bring him, to writing, and to return the same to the next circuit court of the county where such examination is had, as in other cases, and shall also send a copy of the examination and proceedings to the executive of this state, so soon thereafter as may be."
By the 7th sec. of the same act it is provided that, "In all cases where complaint shall be made as aforesaid against any fugitive from justice, it shall be the duty of the judge or justice to take good and sufficient security for the payment of all costs which may accrue from the arrest and detention of such fugitive; which security shall he by bond, to the clerk of the circuit court, conditioned for the payment of costs as above; which bond, together with the statement of the costs, which may have accrued on the examination, shall be returned to the office of the clerk of the circuit court."
The proceedings under tins act differ, in some respects, from the cases of offences committed within the state, and, in relation to the examination of the prisoner and the witnesses, are similar to the proceedings under the English statute.
In the case of fugitives from justice, it will be perceived that it is the duty of the justice to reduce the examination of the prisoner and those who bring him to writing, and to return the same to the circuit court, and to send a copy to the executive of this state; and security for the payment of all costs which may accrue from the arrest and detention of the fugitive, is to be required by the justice, the bond to be in the name of the clerk of the circuit court. With these exceptions, the proceedings are similar to those under the act for the apprehension of persons for offences committed in this state.
The examination of the witnesses on the part of the prosecution is to be on oath, in the presence of the prisoner, who has a right to cross examine them. The justice is to reduce tie evidence of the witness to writing, in a plain and intelligible manner, and, as nearly as possible, in the language in which it was delivered. And the whole evidence should he put down, as well that which is in favor of as tha. which is against the prisoner, and not merely so much as will show that the offence is within the jurisdiction, and justifies the commitment of the offender. It would not, however, be necessary to put down statements made by the witnesses which are totally foreign to the inquiry. 1 Chit. dim. Law, 79.
After the examination of a witness is taken and put in writing, it should be read to him and corrected, and then signed by him and certified by the justice.
The above observations as to the taking the evidence on the part of the prosecution, equally apply to the evidence taken on the part of the prisoner.
The examination of the prisoner must be entirely voluntary, and it ought not to be on oath; and when sworn, it lias, for that cause, been rejected as evidence against him. 1 Chit. Grim. Law, 86.
There should be no improper influence, either by threats, promise, or misrepresentation, employed by the justice, nor should he permit any; for, however slight the inducement may have been, a confession so obtained cannot be received as 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. 1 Chit. Crim. Law, 85.
If there be more than one person accused, it is important that they should be examined apart, in order that an opportunity may be aiForded of detecting any variation in their story. 1 Chit. Crim. Law, 88.
The usual practice is to take the examination of the prisoner after the complainant and the witnesses on the part of the prosecution have been examined.
With respect to the examination of the prisoner himself, it has been observed, that the statutes of Philip and Mary were the first warrant given for the examination of a felon by the English law. For, at the common law, the guilt of an offender was not to be wrung out of himself, but rather to be discovered by other means and other men; and, though the statutes just noticed authorize an examination, they are not compulsory on the prisoner to accuse himself. There is no mode of extorting a statement from the accused. Indeed, the examination has been considered rather as a privilege in his favor. 1 Chit. Crim. Law, 84.
It is, also, important that great care should be taken in reducing the examinations of the prisoner and witnesses to writing, because it is from the inspection of a copy of them that the executive is to determine whether the finding an indictment would be warranted, and whether the prisoner is to be sent to another state for trial. ■
Form of oath to be administered to witnesses.
You do swear by the everliving God, that you will true answers make to such questions as may be asked you touching the present complaint against C. D. So help you God.
Form of affirmation.
You do solemnly, sincerely, and truly declare and affirm, that you will make true answers to such questions as may be asked you touching the present complaint against C. D. And this you do under the pains and penalties of perjury.
Form of bond for costs. Know all men by these presents, that we, A. B., E. F., and G. H., of in the county of and state of Illinois,
are held and firmly bound unto Lorenzo J.etand, clerk of the circuit court of La Salle county, in said state of Illinois, and to his successors in office, in the penal sum of dollars, to be
paid to the said clerk as aforesaid, or his successors in office, to which payment, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, and administrators firmly, by these presents, sealed with our seals, dated this day of in the year of our Lord one thousand
eight hundred and forty
Whereas, the said A. B. has this day made complaint, on oath, against C. D., before William T. Bayley, Esquire, a justice of the peace of the said county of La Salle, that the said C. D., on the day of 18 at in the county
of and state of Ohio, (set out the offence,) and that
the said C. D. hath fled from justice, and has prayed that a warrant issue for the apprehension of the said C. D.
Now, therefore, the condition of the above obligation is such, that, if the said A. B. shall well and truly pay all costs which may accrue from the arrest and detention of the said C. D.,then the above obligation to be void, otherwise to be and remain in
full force and effect.
of William T. Bayley. \ [L. S.
Form of warrant.
State of Illinois, )
La Salle county, \ ss. The people of the State of Illinois to any constable of the said county:
Whereas, A. B. hath this day made complaint, on oath, (or affirmation,) before William T. Bayley, Esquire, one of the justices of the peace of the said county, that C. D., on the day of 18 at in the county of and
state of Ohio, (here set out the offence,) and that the said C. D. hath fled from justice:
We, therefore, command you forthwith to take said C. D. and bring him before the said William T. Bayley, Esquire, to be dealt with according to law. Hereof fail not at your peril. Witness, the said William T. Bayley, Esquire, at Ottawa, in the said county, the day of 18
William T. Bayley. [L. S.]
Form of examination of witnesses. State of Illinois, )
La Salle county, \ ss. The examination of A. B., G. H., and I. J., taken upon oath before me, William T. Bayley, Esquire, a justice of the peace of the said county of La Salle, on the day of 18 in the presence and hear
ing of C D., charged before me, by the said A. B., with, on the day of 18 at in the county of
and state of Ohio, feloniously stealing, taking, &c., (set out the offence as in the warrant,) and with having lied from justice.
The said A. B., on the part of the prosecution, on his oath aforesaid, before me, the s aid justice, in the presence and hearing of the said C. D., saith (set forth the evidence of A. B.)
The said G. II., on the part of the prosecution, on his oath aforesaid, before me, the said justice, in the presence and hearing of said C. D., saith, (here set forth the evidence of G.H.)
The said I. J., on the part of thc said C. D., on his oath aforesaid, before me, the said justice, in the presence and hearing of the said C. D., saith, (here set forth the evidence of I. J.) Taken before me, the day and year first above? A. B.
mentioned. William T. Bayley. 5 G. H.
Examination of prisoner. State of Illinois, )
La Salle county, $ ss. The examination of C. D., taken before me, William T. Jiayley, Esquire, a justice of the peace of the said county, on the day of 18 the said C.
I), being charged by A. B. with (set out the offence, and fleeing from justice, as in the examination of witnesses.) lie, the said C. D., upon his examination now taken before me, saith, that (here set out prisoner's statement.) Taken before me, the day and year first above }
mentioned. William T. Jiayley. $
There does not seem to be any object in sending to the executive anything besides a copy of the examination of the witnesses and of the prisoner; but, as a copy of the examination and proceedings are required by the statute, it would be advisable to send a copy of the warrant, commitment, or recognizance, as the case may be, certified under the hand of the justice as follows:
State of Illinois,?
La Salle county, $ ss. I, the subscriber, a justice of the peace in and for the county aforesaid, do hereby certify that the above is a true copy of the examination and proceedings had and taken before me. William T. Raylcy.
For forms of commitments, recognizance, subpoenas, and attachments against witnesses, &c., thee heretofore given in chapter VIII. will answer, with slight alterations so as" to conOFFENCES AGAINST THE INiTEn STATES.
form to the facts. The recognizance will, of course, not be to answer to an indictment, otherwise it will be like the form in chapter VIII.
2. OF OFFENCES UNDER THE LAWS OF THE UNITED STATES.
By the 33d section of an " Act to establish the Judicial Courts of the United States," approved Sept, 24, 1789, it is provided, "That for any crime or offence against the United States, the offenders may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the Unitea States where he may be found, agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested, and imprisoned, or bailed, as the case may be, for trial before such court of the United States, as by this act has cognizance of the offence: And copies of the process shall bo returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses, for their appearance to testify in the case; which recognizances the magistrate, before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offenders, or the witnesses, shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offenders and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which case it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of the district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law. And if a person committed by a justice of the supreme, or a judge of a district court, for an offence not punishable with death, shall afterwards procure bail, and there be no judge of the United States in the district to take the same, it may be taken by any judge of the supreme, or superior court of law of such state."
Sect. 9. "That the district courts shall have, exclusively of the courts of the several states, cognizance of all crimes and offences, that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted." The residue of this section re