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upon the charge exhibited against him, whether he be expressly charged with having committed the offence, or upon suspicion only.
It is not necessary, however, to allege, in the mittimus, that the offence was feloniously committed; and it is sufficient if enough appear upon the face of it to show that the charge was for a felony. 1 Chit. Crim. Law, 113.
A commitment ought not to be in the disjunctive. 1 Chit. Crim. Law, 112. An objection to the warrant of commitment, as running in the disjunctive, must prevail. 1 Burn's Justice, 382.
8. The mittimus should point out the place of imprisonment, and not merely direct that the party should be taken to prison; and the party ought to be committed to a common prison of the county in which the offence was committed and the warrant granted, though the prisoner may be pursued into, and taken in another county, or arrested upon a warrant running into any county of the state. 1 Chit. Crim. Law, 114, 108.
Yet, it is said, if a man do commit murder, steal goods, or do any other felony in one county and then fleeth into another county, and is there taken, and brought before a justice of the peace there, he shall, by the justice, be imprisoned in the jail in the county where he is taken, and, after, shall be removed by a writ of habeas corpus into the jail of the county where he committed the felony. Dalt. Justice, 534, 585. 1 Burn's Justice, 380. This, however, can only be done where the offender is not arrested upon a warrant issued in the county where the crime was committed. By the common law it is said that, in strictness, there ought to have been a fresh warrant in every fresh county, 4 Bl. Com., 292, and the offender committed to the jail of the county where he was taken. Dalt. Justice, 585
It is not supposed that our statute, authorizing the justice issuing a warrant to make an order thereon authorizing a person, to be named in such warrant, to execute the same, and thcreby giving him power to arrest the offender anywhere in the state and bring him before the justice issuing the warrant, or some other justice in the same county; or the statute authorizing any officer in the state having a warrant for the apprehension of an offender, to pursue him into an adjoining county, if he shall cross the line, was intended to do away the common law practice, but to afford additional means for apprehending and securing offenders.
9. The mittimus should have an apt conclusion; namely, to detain him " until he shall be delivered by due course of law." These words alone are proper, when the party is committed for an offence not bailable; but, when he is committed for want of sureties, for a bailable offence, it is usual to direct the jailer to keep the prisoner in his said custody for want of sureties, or "until he shall be discharged by due course of law." But the most usual and comprehensive words are, "until he shall be discharged by due course of law." 2 Hale, 123. 1 Chit. Crim. Law, 114. But, if the conclusion be irregular, it doth not seem to make the mittimus void, but the law will reject that which is surplusage, and the rest shall stand. 1 Hale, 584.
No precise mode of introducing the statement of the offence appears material. The most usual forms are, "with feloniously assaulting," &c.; or "with having on," &c.; or " for unlawfully," &,c.; or "with a misdemeanor, to wit, with having," &c.; or "with suspicion of having been guilty of," &c.; or " for that he, the said C. D., on," &c.; and then recite the offence as set out in the warrant of arrest. The last seems to be the more preferable form of introducing the statement of the crime. If the offence be against a statute, the description should close with the words " contrary to the form of the statute or statutes in such case made and provided."
The mittimus then proceeds with a direction to the jailer, "And you, the said keeper, are hereby required to receive the said C. D. into your custody in the said jail, and him there safely keep until he shall be discharged by due course of law or, if he be committed for a bailable offence, or for want of finding sureties, " for want of sureties, or until he shall be discharged by due course of law."
It is the duty of the jailer to receive the party; and, if he refuse, or unlawfully demand any thing for receiving him, it is an indictable offence. If the jailer will not receive him, it is said that the constable, or person who arrested him, may, in such case, keep the prisoner in his own house. Halt. Justice, 586. The officer to whose custody he was committed on the mittimus may, in such case, keep the prisoner until the jailer can be compelled to receive him. But, in other cases, it seems that, regularly, no one can justify the detaining a prisoner in custody out of the common jail, unless there be some particular reason for so doing; as, if the party be so dangerously sick that it would apparently hazard his life to send him to jail, or unless there be evident danger of a rescous. 1 Burn's Justice, 384. 1 Hawk., 118.
If the justice, acting within the scope of his jurisdiction, but taking an erroneous view of the effect of the evidence, should come to a wrong conclusion, and commit the defendant, and he should be afterwards discharged by the superior court on habeas corpus, yet he cannot, on that account, sue the justice. 1 Chit. Crim. Laiv, 116.
By statute, it is provided that " It shall be the duty of the judge or justice committing a person to jail, to endorse on the warrant of commitment, in bailable cases, in what sum bail ought to be taken." Gale's Stat., 239.
And it is also provided, that it shall be the duty of the judge or justice of the peace who shall commit any offender to jail, either because such offender is unable to procure bail for his appearance at court, or because the offence is not, by law, bailable, to write on the warrant qf commitment the names and residence of the principal witnesses by whom the crime was proved before said judge or justice. Gale's Stat., 242.
Any sheriff, or his deputy, any jailer or coroner, having custody of any prisoner committed on any civil or criminal process of any court or magistrate, who shall neglect to give such prisoner a copy of the process, order, or commitment by virtue of which he is imprisoned, within six hours after demand made by said prisoner, or any one on his behalf, shall forfeit five hundred dollars. Gale's Stat., 327.
When the prisoner shall demand a copy of the warrant of commitment, the sheriff or jailer shall endorse on the copy the names of the witnessses written thereon. Any judge or justice who shall neglect to write the name or names of the witnesses aforesaid on the warrant of commitment, or any sheriff or jailer who shall neglect to endorse the name of said witness or witnesses on any copy of said commitment, shall be fined in the sum of twenty dollars, to be recovered by action of debt in the name of and for the use of any person who shall sue for the same in any court of record. Gale's Stat., 242.
4. Of the recognizance to give evidence.
When the justice has concluded the examination, and there appears sufficient ground to suppose that the prisoner is guilty of the offence charged against him, he is to take the recognizance of the prosecutor and other witnesses, to appear and give evidence at the next circuit court having jurisdiction of the offence. 1 Hale, 586. 2 Hale, 62. Dalt. Justice, 534.
By the 4th sec. of " An act to regulate the apprehension of offenders, and for other purposes," it is provided that "It shall be the duty of the judge or justice of the peace who shall commit any offender to jail as aforesaid, or admit him to bail, to bind by recognizance the prosecutor, and all such as do declare anything material, to prove the offence charged, to appear before the next circuit court, on the first day thereof, or if the said court shall be then sitting, on some day to be therein designated (and in all cases at the same time and place as the person or persons accused by said witnesses shall be bound to appear,) to give evidence touching the offence so charged, and not depart the court without leave. If any person, upon being required to enter into recognizance as aforesaid, shall refuse, it shall be lawful for such judge or justice of the peace to commit him or her to jail, there to remain until he or she shall enter into such recognizance, or be otherwise discharged by due course of law." Gale's Stat., 239.
The recognizance must be taken to the people of the state
and signed by the person or persons entering into the same, and certified by the officer taking it, and delivered to the clerk of the circuit court, on or before the day mentioned therein for the appearance of the witness or witnesses. Gale's Slat., 239.
When infants and married women, who cannot legally bind themselves, are required to appear, they must find others to be bound for them. 1 Chit. trim. Law, 91. This doctrine was confirmed in a late case, where a married woman refused to enter into a recognizance for her appearance to give evidence against a felon, and the magistrate committed her, and the court of King's Bench held that the commitment was legal. 3 Maule <$• Sel. h
But a justice of the peace is not authorized, by law, to commit a witness willing to enter into a recognizance for his appearance to give evidence against an offender, merely because such witness is unable to find such surety: the party's own recognizance, at the peril of commitment, is all that ought to be required. 1. Chit. Crim. Law, 91.
It is not necessary to take a separate recognizance for each witness, but they may all be bound in one.
5. Of bailing after commitment.
It appears, by the common law, that, if a party is not ready with bail at the time he is apprehended, and the offence is bailable, he may, at any time before conviction, be released from imprisonment on finding sureties. 1 Chit. Crim. Law, 102. And, in such a case, it is said that the prisoner might be bailed by one justice of the peace. Dalti Justice, 552. It has been held that one justice may bail for offences triable at the sessions. 1 Burn's Justice, 149. But, where the prisoner was committed for a felony, or other offence bailable by law and which could not be tried at the sessions, it appears to be the usual practice for two justices to take the bail. Dalt. Justice, 53, 552.
By our statute, the power of justices of the peace, in bailing offenders, is limited to taking bail of persons committed on a criminal charge for the want thereof before indictment found.
By the 6th sec. of "An act to regulate the apprehension of offenders, and for other purposes," it is provided that, "Where any person shall be committed to jail on a criminal charge, for want of good and sufficient bail, except for treason, murder, or other offence punishable with death, or for not entering into a recognizance to appear and testify, any judge, or any two justices of the peace, may take such bail or recognizance in vacation, and may discharge such prisoner from his or her imprisonment." Gale's Stat., 239.
After the recognizance has been entered into, the justices before whom the transaction takes place will issue their warrant, called a liberate, to the jailor to discharge him. 1 Chit.Crim. Law, 102. 4 Burn's Justice, 298.
FORMS OF WARRANTS AND OTHER PROCEEDINGS BEFORE
Form of oath of complainant or witness.
You do swear, by the ever living God, that you will true answers make to such questions as shall be put to 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 true answers make to such questions as shall be put to you touching the present complaint against C. D., and this you do under the pains and penalties of perjury.
General form of a warrant in the name of the people. State of Illinois, )
La Salle County, $ ss. The people of the state of Illinois to all sheriffs, coroners, and constables of said state:
Whereas, A. B. hath this day made complaint on oath before Seth B. Farwell, Esquire, one of the justices of the peace of the said county, that (here set forth the offence.)
We, therefore, command you forthwith to take the said C. D. and bring him before the said Seth B. Farwell, Esquire, or, in case of his absence, before any other justice of the peace of the said county, to be dealt with according to law.
Hereof fail not at your peril. Witness, the said Seth B. Farwell, Esquire, at Ottawa, in said county, the day of 18 Seth B. Farwell.
Another form of warrant. State of Illinois, )
La Salle county, \ ss. To all sheriffs, coroners, and constables of said state: Whereas, A. B. hath this day made complaint on oath be