TITLE XXXI. CHAPTER 162. TITLE XXXI. OF PROCEEDINGS IN CRIMINAL CASES. Chapter 162. Of Proceedings to prevent the Commission of Crime. Chapter 164. Of Indictments and Proceedings before Trial. Chapter 166. Of new Trials and Exceptions in Criminal Cases. Chapter 168. Of Judgments in Criminal Cases and the Execution thereof. Chapter 169. Of Fees of Officers and Ministers of Justice in Criminal Cases. Chapter 170. Miscellaneous Provisions concerning Proceedings in Officers author. peace. CHAPTER 162. OF PROCEEDINGS TO PREVENT THE COMMISSION OF CRIME. SECTION 1. The justices of the supreme court, judges of county ized to keep the courts, circuit court commissioners, all mayors and recorders of cities, and all justices of the peace, shall have power to cause all laws made for the preservation of the public peace, to be kept, and in the execution of that power, may require persons to give security to keep peace, in the manner provided in this chapter. made. the SEC. 2. Whenever complaint shall be made in writing and on Complaint, how oath, to any such magistrate, that any person has threatened to commit any offence against the person or property of another, it shall be the duty of such magistrate to examine such complainant, and any witnesses who may be produced, on oath, to reduce such examination to writing, and to cause the same to be subscribed by the parties so examined. Arrest. Trial, recogni zance. 4 Mass., 497. 8 do., 73. 2 B. & A., 278. SEC. 3. If it shall appear from such examination, that there is just reason to fear the commission of any such offence, such magistrate shall issue a warrant under his hand, directed to the sheriff or any constable of the county, reciting the substance of the complaint, and commanding him forthwith to apprehend the person so complained of, and bring him before such magistrate. SEC. 4. When the party complained of is brought before the magistrate, he shall be heard in his defence, and he may be required to enter into a recognizance with sufficient sureties, in such sum as the magistrate shall direct, to keep the peace towards all the people of CHAPTER 162. this state, and especially towards the person requiring such security, TITLE XXXI for such term as the magistrate may order, not exceeding one year, but shall not be bound over to the next court, unless he is also charged with some other offence, for which he ought by law to be held to answer at such court. SEC. 5. Upon complying with the order of the magistrate, the par- Party, when disty complained of shall be discharged. charged. cognize, to be SEC. 6. If the person so ordered to recognize, shall refuse or neg- Refusing to relect to comply with such order, the magistrate shall commit him to committed. the county jail, during the period for which he was required to give security, or until he shall so recognize; stating in the warrant the cause of commitment, with the sum and the time for which such security was required. costs. SEC. 7. If, upon examination, it shall not appear that there is just Complainant, cause to fear that any such offence will be committed by the party com- when to pay plained of, he shall be forthwith discharged; and if the magistrate shall deem the complaint unfounded, frivolous or malicious, he shall order the complainant to pay the costs of the prosecution, who shall thereupon be answerable to the magistrate and the officer (officers) for their fees, as for his own debt. SEC. 8. When no order respecting the costs is made by the magis- Payment of cost trate, they shall be allowed and paid in the same manner as costs be- in other cases. fore justices in criminal prosecutions; but in all cases where a person is required to give security to keep the peace, the court or magistrate may further order that the costs of prosecution, or any part thereof, shall be paid by such person, who shall stand committed, until such costs are paid, or he is otherwise legally discharged. SEC. 9. Any person aggrieved by the order of any justice of the Appeal allowed. peace, requiring him to recognize as aforesaid, may, on giving the recognizance to keep the peace required by such order, appeal to the circuit court for the same county. com cognize. SEC. 10. The justice from whose order an appeal is taken, shall Witnesses to rerequire such witnesses as he think necessary to support the may plaint, to recognize for their appearance at the court to which the appeal is made. Court may affirm order of justice, or discharge ap SEC. 11. The court before which such appeal is prosecuted, may affirm the order of the justice, or discharge the appellant, or may require the appellant to enter into a new recognizance, with sufficient pellant, &c. sureties, in such sum, and for such time, not exceeding one year, as the court shall think proper, and may also make such order in relation to the costs of prosecution, as may be deemed just. in force. SEC. 12. If any party appealing shall fail to prosecute his appeal, Recognizance, his recognizance shall remain in full force and effect, as to any breach when to remain of the condition, without an affirmation of the judgment or order of the justice, and shall also stand as a security for any costs which shall be ordered by the court appealed to, to be paid by the appellant. SEC. 13. Any person committed for not finding sureties, or refusing Person committo recognize, as required by the court or magistrate, may be discharg- ged. ed by any judge, circuit court commissioner or justice of the peace, on giving such security as was required. ted how dischar be transmitted to SEC. 14. Every recognizance, taken pursuant to the foregoing pro- Recognizance to visions, shall be transmitted by the magistrate to the clerk of the cir- clerk of court. cuit court for the county, within twenty days after the taking thereof, and on or before the next term of such court, and shall be filed by such clerk. TITLE XXXI. Breach of peace in presence of magistrate, &c. Person going armed to find sureties for the peace. Court may remit 7 Mass., 397. any SEC. 15. Every person who shall, in the presence of any magistrate mentioned in the first section of this chapter, or before any court of record, make an affray, or threaten to kill or beat another, or to commit violence or outrage against his person or property, and every person who, in the presence of such court or magistrate, shall contend with hot and angry words, to the disturbance of the peace, may be ordered, without process or any other proof, to recognize for keeping the peace, for a term not exceeding six months, and in case of refusal, may be committed as before directed. SEC. 16. If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided. SEC. 17. Whenever upon a suit brought on any recognizance enpart of penalty. tered into in pursuance of this chapter, the penalty thereof shall be adjudged forfeited, the court may remit such portion of the penalty, on the petition of any defendant, as the circumstances of the case shall render just and reasonable. Surety may sur cipal, effect of surrender. SEC. 18. Any surety in a recognizance to keep the peace, shall render his prin- have the same authority and right to take and surrender his principal as in other criminal cases, and upon such surrender shall be discharged and exempt from all liability for any act of the principal subsequent to such surrender, which would be a breach of the condition of the recognizance; and the person so surrendered may recognize anew, with sufficient sureties, before any justice of the peace or circuit court commissioner for the residue of the term, and shall thereupon be discharged. What officers cess for the arrest of offenders, &c. CHAPTER 163.. OF THE ARREST AND EXAMINATION of offenDERS, COMMITMENT FOR SECTION 1. For the apprehension of persons charged with offences, may issue pro- excepting such offences as are cognizable by justices of the peace, the justices of the supreme court, judges of the county courts, circiuit court commissioners, mayors and recorders of cities, and all justices of the peace, shall have power to issue process and to carry into effect the provisions of this chapter. Complainant, &c. SEC. 2. Whenever complaint shall be made to any such magistrate, to be examined. that a criminal offence, not cognizable by a justice of the peace, has been committed, he shall examine on oath the complainant, and any witnesses who may be produced by him. Proceedings if it appear that an offence has been committed. SEC. 3. If it shall appear from such examination, that any criminal offence, not cognizable by a justice of the peace, has been committed, the magistrate shall issue a warrant, directed to the sheriff or any constable of the county, reciting the substance of the accusation, and commanding him forthwith to take the accused of having com- TITLE XXXI. CHAPTER 163. SEC. 4. If any person against whom a warrant shall be issued for Where warrant an alleged offence committed within any county, shall, either before may be executed or after the issuing of such warrant, escape from, or be out of the county, the sheriff or other officer to whom such warrant may be directed, may pursue and apprehend the party charged in any county of this state, and for that purpose may command aid, and may exercise the same authority as in his own county. may be brought arrest is made. SEC. 5. In all cases where the offence charged in the warrant is When prisoner not punishable with death, or imprisonment in the state prison, and before magistrate not cognizable by a justice of the peace, if the arrest shall be made in of county where any other county than that where the offence is charged to have been committed, and if the person arrested shall request that he may be brought before a magistrate of the county in which the arrest was made, it shall be the duty of the officer or person arresting him, to carry such prisoner before a magistrate of that county. take from per SEC. 6. Such magistrate may take from the person arrested, a re- Magistrate may cognizance, with sufficient sureties, for his appearance at the court son arrested rehaving cognizance of the offence, and next to be held in the county cognizance, &c. where the offence shall be alleged to have been committed, and the party arrested shall thereupon be liberated. magistrate on SEC. 7. Such magistrate shall certify on the warrant, the fact of his Certificate of having let the defendant to bail, and shall deliver the same, togeth- warrant; to er with the recognizance taken by him, to the person who made whom recogni the arrest, who shall cause the same to be delivered without unneces- livered. sary delay, to the clerk of the court before which the accused was recognized to appear. zance to be de prisoner not bail. SEC. 8. If such magistrate refuse to let to bail the person so arrest- Duty of officer if ed and brought before him, or if no sufficient bail be offered, or the ed. offence be not bailable by such magistrate, or not cognizable by a justice of the peace, the person having him in charge shall take him. before the magistrate who issued the warrant, or before some other magistrate of the same county, as in the next section prescribed. SEC. 9. Persons arrested under any warrant issued for any offence When persons not cognizable by a justice of the peace, shall, where no provision brought before is otherwise made, be brought before the magistrate who issued the magistrate issu warrant; or if he be absent, or unable to attend, before some other magistrate of the same county: and the warrant, with a proper return thereon, signed by the person who made the arrest, shall be delivered to the magistrate. arrested to be ing warrant. may be adjourn SEC. 10. Any magistrate, for an offence not cognizable by a justice Examination of the peace, may adjourn an examination or trial pending before ed, disposition of himself from time to time, as may be necessary, without the consent defendant. of the defendant or person charged, and to the same or a different place in the county, as he shall deem necessary; and in such case, the party may, in the mean time, be committed either to the county jail or to the custody of the officer by whom he was arrested, or of any other officer; or unless he shall be charged with a capital offence or the crime of murder in the first degree, he may be recognized in a sum and with sureties to the satisfaction of the magistrate, for his appearance before such magistrate for such further examination. TITLE XXXI. CHAPTER 163. How defendant SEC. 11. The person accused may be committed as provided in the preceding section, by the verbal order of the magistrate, or by a warrant under his hand, stating that he is committed for such further exmay be commit- amination on a day to be named in the warrant; and on the day therein specified, he may be brought before the magistrate by his verbal order to the same officer by or to whose custody he was committed, or by an order in writing to a different officer. ted, &c. Default to appear, duty of magis trate. Manner of con tion. SEC. 12. If the person recognized according to the foregoing provisions, shall not appear before the magistrate at the time appointed for his further examination, the magistrate shall record the default, and shall certify the recognizance, with the record of such default, to the circuit court for the county, and the like proceedings shall be had thereon as upon the breach of the condition of a recognizance for appearance before such court. SEC. 13. The magistrate before whom any person is brought, upducting examina on a charge of having committed an offence, and not cognizable by a justice of the peace, shall proceed as soon as may be, to examine the complainant, and the witnesses in support of the prosecution, on oath, in the presence of the prisoner, in regard to the offence charged, and in regard to any other matters connected with such charge, which such magistrate may deem pertinent. Ib. Ib. Testimony to be SEC. 14. After the testimony in support of the prosecution has been given, the witnesses for the prisoner, if he have any, shall be sworn and examined, and he may be assisted by counsel in such examination, and also in the cross examination of the witnesses in support the prosecution. of SEC. 15. The magistrate, while examining any witness, may exclude from the place of examination all the witnesses who have not been examined; and he may also, if requested, or if he see cause, direct the witnesses, whether for or against the prisoner, to be kept separate, so that they cannot converse with each other, until they shall have been examined. SEC. 16. The evidence given by the several witnesses examined, reduced to wri- shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses respectively. ting. Prisoner when SEC. 17. If it shall appear to the magistrate, upon the examination to be discharged. of the whole matter, either that no offence has been committed, or that there is not probable cause for charging the prisoner therewith, he shall discharge such prisoner. When to be bail SEC. 18. If it shall appear that an offence not cognizable by a jused or committed. tice of the peace has been committed, and that there is probable cause to believe the prisoner guilty thereof, and if the offence be bailable by the magistrate, and the prisoner offer sufficient bail, it shall be taken, and the prisoner discharged; but if no sufficient bail be offered, or the offence be not bailable by the magistrate, the prisoner shall be committed to prison for trial. Complainant and cognize. SEC. 19. When the prisoner is admitted to bail, or committed by witnesses to re- the magistrate, such magistrate shall bind by recognizance, the complainant, and all the material witnesses against such prisoner, to appear and testify at the next court having cognizance of the offence, and in which the prisoner shall be held to answer, and it shall be competent, in all cases contemplated in this section, for any magistrate in the county where any such offence is alleged to have been committed, to issue process to compel the attendance of any witness or witness |