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Preliminary Examination

magistrate, person, pac, bail, commitment and crime

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PRELIMINARY EXAMINATION. The hearing given to a person accused of crime, by a magistrate or judge, exercising the functions of a committing magistrate, to as certain whether there is evidence to war rant and require the commitment and hold ing to bail of the person accused. See Bish. New Cr. L. § 32, 225.

Coroners generally have the powers of a committing magistrate as also have the mayors of cities in many of the states; id. 229 b.

In case, as It often happens, there is question as to what precise crime should be charged against the prisoner or whether more than one crime is involved in the facts shown, the commitment should be so framed as to cover them all, leaving to the prose cuting officer and the grand jury the oppor tunity for election ; but if the commitment does not cover all charges it does not dis charge the prisoner from liability for the rest; id. § 33. The discharge of a prisoner on a preliminary examination will not oper ate as a bar to further proceedings; Duffy v. Britton, 47 N. J. L. 251; In re Garst, Neb. 78, 4 N. W. 511.

It is said that a person charged with crime, unless a fugitive from justice, is en titled to a preliminary examination; Cof field v. State, 44 Neb. 417, 62 N. W. 875 ; but it was also held that such examination is not necessary as a basis for finding an in dictment; State v. Schieler, 4 Idaho 120, 37 Pac. 272; and that in proper cases the court may direct the prosecuting attorney to sub mit indictments without such examination ; Com. v. Taylor, 2 Dist. Rep. (Pa.) 743. A complaint made on such examination may be dismissed and a new charge prosecuted be fore another magistrate; State v. Nord strom, 7 Wash. 506, 35 Pac. 382; but after holding the accused to bail the magistrate cannot discharge him without notice to the prosecutor ; Hill v. Egan, 160 Pa: 119, 28 All. 646. The denial of the right to be taken before a magistrate of the county in which one is arrested, to give bail does not vitiate a subsequent trial and conviction ; People v.. Eberspacher, 79 Hun 410, 29 N. Y.

Supp. 796.

Where the evidence seems to warrant the commitment of the accused person, or time is required for the introduction of other evidence or for further investigation, the person may be committed or held to bail for further hearing. The examination may be postponed on account of the physical in ability to attend of important witnesses for the state; State v. Aucoin, 47 La. Ann. 1677, 18 South. 709.

Generally the offence charged is stated in the complaint and warrant and a pre liminary examination is waived; and a plea that there was no such examination will not be entertained after information filed ; State v. Myers, 54 Kan. 206, 38 Pac. 296. An objection that there was no pre liminary examination must be raised before trial by plea in abatement or motion to quash ; Caned v. State, 44 Neb. 417, 62 N. W. 875.

A person arrested and taken before a magistrate for preliminary examination may waive it even where the state constitution secures the right to such examination; Peo ple v. Tarbox, 115 Cal. 57, 46 Pac. 896; State v. Larkins, 5 Idaho 200, 47 Pac. 945. See, also, as to waiver of such examinations, Ryan v. Stdte, 83 Wis. 486, 53 N. W. 836 ; People v. Harris, 103 Mich. 473, 61 N. W. 871.

It is the duty of the committing mag istrate to secure the attendance of witnesses for the prosecution who are examined by him, for which purpose he may require them to give bail for their appearance before the grand jury or in the criminal court, with or without surety which is usually in his dis cretion; 1 Bish. N. Cr. L. 34. Where the preliminary examination is provided for by law, the testimony of the witnesses taken thereat may be afterivards shown in contra diction ; People v. Nelson, 85 Cal. 421, 24 Pac. 1006 ; Dolan v. State, 40 Ark. 454. And the witnesses are liable to the penalties of perjury for false swearing if so author ized, otherwise not; State v. Furlong, 26 Me. 69; 2 McClain, Cr. Law § 858.

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