witness, as the magistrate deems material; omitting entirely the questions put, and professing to give nothing more than the substance of the evidence. When it is remembered how essential it is, in testing the credibility of witnesses who have been previously examined, to point with certainty to their former statements on oath, relating to the same subject, and how important this right may become to the people as well as to the defendant, it will be readily admitted that the testimony in the precise form in which it was given, leaving no room for doubt or misconstruction as to its meaning, should be carefully preserved. Daily experience shows, that in the mode in which depositions are taken by the examining magistrate, when the attempt is made to impeach a witness by the production of his deposition, nothing is more common than his escape from the force of the contradiction, by his own statement and that of the magistrate, that the substance of the testimony only, and not the language of the witness, had been taken.

It is proposed to correct this evil, by requiring that the deposition of the witness contain the questions put and the answers given; each answer being distinctly read to the witness, as it is taken down, and being corrected or added to until it is made conformable with what he declares is the truth; and that if a question put be objected to and overruled, or the witness decline answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated.

§ 204. The magistrate or his clerk must keep the depositions taken on the information or on the examination, and the statement of the defendant, if any, until they are returned to the proper court; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offence, the attorneygeneral, the district attorney of the county, and the defendant and his counsel.

§ 205. A violation of the provisions of the last section is punishable as a misdemeanor.

The last two sections have in view the same objects as are stated in the note to sec. 202, p. 94, and enforce them by the same penalty as is now applied by statute, to the disclosure of the fact that an indictment for a felony has been found against a party not arrested. 2 R. S., 3d ed. 812, sec. 39. The principle in both cases is the same, na.nely, to prevent the defeat or prejudice of justice, and the penalty should be the

same.

§ 206. If the defendant be held to answer the charge, the magistrate or his clerk having the custody of the depositions taken on the information or examination, and of the statement of the defendant, must, on payment of his fees at the rate of five cents for every hundred words, and within two days after demand, furnish to the defendant, or his counsel, a copy of the depositions and statement, or of either of them, or permit him to take a copy.

A practice, which has been extensively pursued, and which, in the view of the Commissioners, is incompatible with the due administration of justice, is the refusal to permit the defendant to have copies of the depositions taken against him. It has been customary in some portions of the state, when the depositions are returned to the court, to deliver them over to the district attorney, by whom they are retained with as much secrecy as a counsel in a civil action would use in concealing from his adversary, the testimony by which success was to be attained. The right of the defendant to the inspection of the depositions, has been frequently resisted by public prosecutors, as incompatible with the interests of the prosecution.

It has been said in justification of this practice, that if the opportunity were afforded to the defendant of inspecting these depositions, he might thereby be permitted to escape under cover of a false defence; and even courts, when applied to, to enforce what the Commissioners believe to be the right of the defendant, have refused to lend their aid in its enforce[CRIM. CODE.]

7

ment. It is a rule of the common law, that the defendant shall have every reasonable opportunity to meet and answer the charges and proofs against him; and the Commissioners are not disposed to treat with seriousness, the answer that the right should not exist, because by possibility it may be abused. The theory of a prosecution is, that the defendant is called upon to explain circumstances appearing against him, which, if unexplained, tend to establish his guilt; and to deny him this right, is to convert a criminal prosecution into the means of destroying the defendant, by springing upon him on the trial, when wholly unprepared to explain them, a state of facts, which, if the opportunity had been allowed, would have admitted of abundant explanation.

In accordance with views similar to those here expressed, the British parliament have within a few years enacted, “ that all persons who shall be held to bail or committed to prison for any offence against the laws, shall be entitled to require and have, on demand, (from the person who shall have the lawful custody thereof, and who is thereby required to deliver the same,) copies of the examinations of the witnesses respectively upon whose depositions they have been so held to bail or committed, on payment of a reasonable sum for the same, not exceeding 1d. for each folio of 90 words: provided, that if such demand shall not be made before the day appointed for the commencement of the assizes or sessions, at which the trial is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the judge or other person to preside at such trial shall be of opinion, that such copy may be made and delivered without delay or inconvenience to such trial; but it shall nevertheless be competent for such judge, &c, if he shall think fit, to postpone such trial, on account of such copy of the examination of witnesses not having been previously had by the party charged. And all persons under trial, are entitled, at the time of their trial, to inspect, without fee or reward, all depositions (or copies thereof,) which have been taken against them, and returned into the court before which such trial shall be had. 6 & 7 W. 4 ch. 114, sec. 3, 4.

§ 207. After hearing the proofs, and the statement of the defendant, if he have made one, if it appear, either

that a public offence has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an endorsement on the depositions and statement, signed by him, to the following effect: "There being no sufficient cause to believe the within named A. B. guilty of the offence within mentioned, I order him to be discharged."

§ 208. If, however, it appear from the examination, that a public offence has been committed and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must, in like manner, endorse on the depositions and statement, an order, signed by him, to the following effect: "It appearing to me by the within depositions (and statement, if any,) that the offence therein mentioned, [or any other offence, according to the fact, stating generally the nature thereof,] has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same."

§ 209. If the offence be not bailable, the following words, or words to the same effect, must be added to the endorsement: "and that he 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."]

§ 210. If the offence be bailable, and bail be taken by the magistrate, the following words, or words to the same effect, must be added to the endorsement mentioned in section 208; "and I have admitted him to bail, to answer, by the undertaking hereto annexed."

211. If the offence 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 endorsement mentioned in section 208: "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 give such bail."

§ 212. If the magistrate order the defendant to be committed as provided in sections 209 and 211, 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 immediately deliver the defendant into the proper custody, together with the commitment.

§ 213. 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