ment for an additional term, such as will pay costs,1 the sentence of each should be for such a term as will pay half the costs.

12. Separate Punishment. - Punishment for crime does not begin until after the criminal has been convicted and sentenced.2 When a prisoner is convicted of a second offence, the judgment may direct that each succeeding period of imprisonment shall commence on the termination of the period next preceding, as in case of pardon, or reversal of the sentence on writ of error.

13. Punishment of Accessories. If a statute says nothing of accessories when it makes an act a felony, the punishment extends to an accessory as much as to the principal, unless there is an express provision to the contrary. So far as punishment is concerned, there is no difference between accessories before the fact and aiders and abettors at the fact.

14. Capital Punishment. - Following the common law, death is the award of the law for any statute felony, unless the statute specially directs otherwise."

The day for the execution of the sentence need not be inserted in the judgment. It may be in the warrant ;9 but if in the judg ment, and the sheriff dies, or the prisoner temporarily escapes, the court may direct the execution of the sentence on a day subsequent to that named in the judgment.10

P. C. 740; 1 Bish. Cr. L. (6th ed.) sec. be sentenced to imprisonment for life. Nut955.

I. Coleman v. State, 55 Ala. 173.

2. People v. Wardens, 66 N. Y. 343; State v. Frazier, 6 Baxt. (Tenn.) 539.

3. People v. Forbes, 22 Cal. 136; Ex parte Dalton, 49 Cal. 463; State v. Smith, 5 Day (Conn.), 175; Kite v. Commonwealth, 52 Mass. (11 Metc.) 581; Cole v. State, 10 Ark. (5 Eng.) 318; Ex parte Mayers, 4 Mo. 279; Williams v. State, 18 Ohio St. 46; Ex parte Turner, 45 Mo. 331; Mills v. Commonwealth, 13 Pa. St. (1 Harr.) 631; Commonwealth v. Leath, 1 Va. Cas. 151; Wilkes v. Rex, 4 Brown, Parl. C. 360; Rex v. Bath, I Leach, 441; Reg. v. Čutbush, L. R. 2 Q. B. 379. Compare Miller v. Allen, 11 Ind. 389.

4. Kite v. Commonwealth, 52 Mass. (11 Metc.) 581; Ex parte Roberts, 9 Nev. 44; Brown v. Commonwealth, 4 Rawle (Pa.), 259; Opin. of Justices, 79 Mass. (13 Gray)

618.

728

hill v. State, 11 Humph. (Tenn.) 247.

7. State v. Scott, 1 Hawk. (N. C.) L. 24. See Adams v. Barrett, 5 Ga. 404; United States v. Jacoby, 12 Blatchf. C. C. 491; United States v. Cross, I McAr. (C. C.) 149. See 1 Bish. Cr. L. (6th ed.) sec. 615.

Under the Laws of the United States, the manner of inflicting the death penalty is by hanging. See Rev. Stat. U. S. sec. 5325.

In Texas the death penalty cannot be inflicted on one under seventeen years of age. Ake v. State, 6 Tex. App. 398.

In Utah capital punishment is inflicted by shooting, hanging, or beheading, at the option of the criminal. Wilkerson v. Utah, 99 U. S. (9 Otto) 130; bk. 25, L. ed. 345..

8. People v. Murphy, 45 Cal. 137; Webster v. Commonwealth, 59 Mass. (5 Cush.) 386; Rex v. Doyle, 1 Leach, 67; Rex v. Wyatt, Russ. & R. 230; Atkinson v. Rex, 3 Brown, Parl. C. 517; Rex v. Hartnett, Jebb, 302.

9. Rex v. Doyle, I Leach, 67.

10. State v. Kitchen, 2 Hill (S. C.), 612; Bland v. State, 2 Ind. 608.

7. Setting aside Verdict, 881. XXI. Motion for New Trial, 881. 1. Grounds for, 881.

2. Proceedings on Second Trial, 881. XXII. Judgment, 882.

1. Arrest of Judgment, 882.
2. Sentence, 882.

a. Suspension of Sentence, 882.
b. Fines and Costs, 882.
XXIII. Error and Appeal, 882.
1. Rights of the State, 884.
2. Time to appeal, 884.
3. When Appeal lies, 885.
4. Bill of Exceptions, 886.

a. Assignment of Errors, 886.

b. Technical Errors, 886.

5. The Record and Transcript, 886. 6. Review on Appeal, 886.

a. Questions considered, 886.

I. Definition. Criminal procedure may be properly defined as the method pointed out by law for the apprehension, trial, or "prosecution," and fixing the punishment, of those persons who have broken or violated, or are supposed to have broken or violated, the laws prescribed for the regulation of the conduct of the people of the community, and who have thereby laid themselves liable to fine or imprisonment, or both.

II. Modes of originating Process.-There are two modes of originating process, or instituting a prosecution, against a person known or suspected to be guilty of the commission of a criminal act, (1) by a complaint made before a magistrate who is authorized to arrest the person charged with, or suspected of, having committed any crime, for the purpose of examining into the truth of the charge, and inflicting upon him the punishment prescribed by law, if the case be within the jurisdiction of such examining magistrate, and of holding him to bail, or sending him to prison, to answer to a higher tribunal where the offence is not within his cognizance; (2) by a complaint made directly to the grand jury, or to the officer charged with the duty of prosecuting all offences, and the finding of an indictment or the filing of an information, upon either of which process issues, and the arrest and trial of the person accused follow.

1. Preliminary Examination. — a. Arrest.— When an arrest has been made, the accused should be taken before a magistrate or magistrates with all reasonable speed. But when arrested on sus

1. As to warrant, see that title, 1 Am. & Eng. Encyc. of L. 730.

An Omission of a Magistrate to secure an order from the prosecuting attorney before issuing process in criminal cases, as provided by How. Stat. § 7135 a, does not deprive him of jurisdiction: the appearance of the prosecuting attorney and his prosecution of the case are sufficient approval. People v. Griswold (Mich.), 7 West. Rep. 899.

2. The magistrates here referred to are those officers of the law who answer to those who in England are known as justices of the peace. Washb. Man. Cr. L. 104. This office was created as early as the statute of I. Edw. III. c. 16. See Com. Dig. tit. "Justice of the Peace; Beache, Man. of a Just. of Peace; Burn, Just.; 15 Viner, Abr. 3; Bacon, Abr. tit. “Justice;' 2 Phill. Ev. 239.

In the American States. In most, if not

picion, he should be detained before he is so taken before the magistrate, in order that evidence against him may first be collected.1

b. Examination. - The magistrate is bound to forthwith examine into the circumstances of the charge. In order to secure the attendance of witnesses to the fact, they may be served with a summons or warrant, in a manner similar to that in which the presence of the accused is secured. If a witness refuses to be examined, he is liable to imprisonment. The room in which the examination is held is not to be deemed an open court, and the magistrate may exclude any person if he thinks fit. When the witnesses are in attendance, the magistrates takes, in the presence of the accused (who is at liberty by himself or his counsel to put questions to any witness produced against him), the statement on oath or affirmation of those who know the facts of the case, and puts the same in writing.

all, of the States of the American Union, a justice of the peace is a public officer, invested with judicial powers, for the purpose of preventing and punishing misdemeanors, and breaches of the peace, and violations of the law. In many of the States they possess civil as well as criminal jurisdiction. See 2 Bouv. L. Dict. (15th ed.) 31.

The Massachusetts. But under the colony of Massachusetts the office of justice of the peace was not known for many years. However, under the Providence Charter, and ever since, it has been a well-defined and important office in the preservation of peace and public order, as well as the punishment of petty offences, notwithstanding the fact that other officers have been clothed with similar powers, to whom the principal part of the jurisdiction in criminal matters has been transferred. See 6 Dane, Abr. 412; Mass. Gen. Stat. c. 120, $$ 32, 36; id. c. 116, § 12; id. c. 169, § 1; and also Acts of 1869, c. 415.

3

trate, of one arrested for crime, is in other respects legal, and in conformity with the other express terms of the statute, a deposition taken and filed without being read by or to the witnesses before signing, cannot affect the status of the defendant in the trial court, to which he is bound over at such examination. He has an undoubted right to require at the examination that the testimony shall be so read before it is signed; but if he makes no objection then, he cannot be heard afterward to complain of it. People v. Gleason (Mich.), 6 West. Rep. 393.

3. In England this is regulated by statute. See 11 & 12 Vict. c. 42, § 19. And the same is true in most of the States of the Union.

4. The omission of the district attorney and magistrate, on preliminary examination, to ask a witness for the prosecution his profession or business, is not prejudicial to the defendant. People v. Rodrigo, 69 Cal. 601.

5. Reducing Evidence to Writing. — The statutes of the States are not uniform in 1. For Forms and Modes of Procedure, their requirements regarding the reducing reference may be made to those in use in of the evidence of the witnesses on the Massachusetts, which correspond in most preliminary hearing to writing. The statute respects to the requirements of the common of Massachusetts, following the common law. See Commonwealth v. Leach, 1 Mass. law closely, so requires, and so also does 59; Commonwealth v. Foster, 1 Mass. 488. the statute of Illinois. See Rev. Stat. 1874, 2. Preliminary Examination. Where p. 401, § 348. On the other hand, the respondent charged with a criminal offence statutes of Michigan see Laws, 1871, had never had a preliminary examination, § 7844-and New York- -see Rev. Stat. or waived the same, and the witness claimed pt. 4, c. 2, tit. 2, § 2-do not require the to have been examined did not sign his evidence of the witnesses to be taken down evidence given on such examination in the in writing, and signed by the witnesses depolice court, as required by the positive posing. See People v. Lynch, 29 Mich. 278. terms of the statute, it was error to overrule his motion to quash the information, and compel him to plead and go to trial thereon. People v. Smith, 25 Mich. 497; People v. Chapman, 28 N. W. Rep. 900; People v. Gleason (Mich.), 6 West. Rep. 393; People v. Brock (Mich.), 7 West. Rep. 885. When the examination, before a magis

Signing Depositions. Where depositions of witnesses, on an examination before a magistrate of one charged with robbery, were taken and filed without being read by or to the witnesses before signing, and the examination in all other respects was regular, under How. Stat. § 9469, held, the action of the court was proper in refus

The magistrate then asks the accused whether he desires to call any witnesses. If he does, the magistrate, in the presence of the accused, takes their statement, on oath or affirmation, whether such statement is given on examination, for they may be submitted to both. These statements, in the same way as those of the prosecution, are read to, and signed by, the witnesses and by the magistrate. And the same rules apply to witnesses, both for the prosecution and for the defence (other than those merely to character), as to being bound over by recognizance to appear and give evidence at the trial. If a witness refuses to enter into such recognizance, he may be committed to prison until the trial. The recognizances, depositions, etc., are transmitted to the court in which the trial is to take place.

(1) Adjournment of Examination. If the investigation before the magistrate cannot be completed at a single hearing, he may from time to time remand the accused to jail for any period not exceeding eight days; or may allow him his liberty in the interval upon his entering into recognizances, with or without sureties, for re-appearance.1

After the defendant has been examined for the offence, there is nothing in the statutes to prevent filing an information as soon as it is found convenient.2

c. Commitment and Discharge. —(1) Discharge. — If, when all the evidence against the accused has been heard, the magistrate does not think that it is sufficient to put the accused on his trial for an indictable offence, he is forthwith discharged. But if he thinks otherwise, or the evidence raises a strong or probable presumption against the accused, he commits him for trial, either at once sending him to jail so as to be forthcoming for trial, or admitting him to bail. Under certain circumstances a third course is open to the magistrate: he may dispose of the case and punish the offender himself.

(2) Commitment for Trial.—It will be noticed that there are two forms of commitment to prison :3 (a) For safe keeping; (b) In execution either as an original punishment, or as a means of

ing to allow defendant to withdraw a plea of not guilty, and to discharge the defendant for the reason of non-reading of the depositions, it appearing that defendant did not at the examination object to the omission. People v. Gleason (Mich.), 6 West. Rep. 393. 1. After the person charged with the commission of an offence has been arrested and brought before a magistrate, for examination or trial, the magistrate is allowed a reasonable time for this purpose before making his final decision. In most of the States this matter is regulated by statute. Thus, in Illinois-Rev. Stat. 1874, 402, $356-and in Massachusetts, Gen. Stat. Mass. c. 170, § 17, -the magistrate may adjourn an examination for a period not

exceeding ten days, and in the mean time require the accused to give recognizance for his appearance, if the offence is a bailable one, and, if not, to commit him to prison. In Iowa,-Code 1873, § 4230,no examination can be adjourned for a longer period than thirty days. Under the Michigan statute, - See Laws, 1871, § 7852, - an adjournment may be made from time to time. See Hamilton v. People, 29 Mich. 176; Pardee v. Smith, 27 Mich. 43.

2. People v. Mason (Mich.), 6 West. Rep. 183.

8. For form of warrant of commitment under N. Y. Rev. Stat. § 31, Code Crim. Proc. 721, 725, see People v. Holmes, 41 Hun (N. Y.), 55.