SECTION 859. Time to send and sending for counsel. 860. Examination, when to proceed. 861. When to be completed. Postponement. 862. On postponement, defendant to be committed or dis- 863. Form of commitment. 864. Depositions to be read on examination and subpoenas issued. 865. Examination of witnesses to be in presence of defendant, 866. Examination of defendant's witnesses. 873. Order for commitment. 874. Certificate of bail being taken. 875. Order for bail on commitment. 876. Commitment, how made and to whom delivered. 877. Form of commitment. 878. Undertaking of witnesses to appear, when and how taken. 879. Security for the appearance of witnesses, when and how required. 880. Infants and married women may be required to give security. 881. Witnesses to be committed on refusal to give security for their appearance. 882. Witness unable to give security may be conditionally 883. Magistrate to return depositions, etc., to the Court. to inform the defendant of the charge, and 858. (§ 146.) When the defendant is brought be- Magistrate fore the magistrate upon an arrest, either with or with out warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings. NOTE.-Justice Wallace, in Ex Parte Walsh, on habeas corpus, 39 Cal., p. 705, held that the practice prevalent of allowing the defendant to waive a preliminary examination of the charge is not authorized by statute, and ought not to be encouraged. his right to counsel. Time to send and counsel. 859. (§ 147.) He must also allow the defendant a sending for reasonable time to send for counsel, and postpone the examination for that purpose, and must, upon the request of the defendant, require a peace officer to take a message to any counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty. Examination, when 860. (§ 148.) If the defendant requires the aid of to proceed. counsel, the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the When to be completed. Postponement. On postponement, to be com mitted or discharge on bail. case. 861. (§ 149.) The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpone it. The postponement cannot be for more than two days at each time, nor more than six days in all, unless by consent or on motion of the defendant. 862. (§ 150.) If a postponement is had, the magdefendant istrate must commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this Code, as security for his appearance at the time to which the examination is postponed. Form of commitment. Depositions to be read on examination and subpoenas issued. 863. (§ 151.) The commitment for examination is made by an indorsement, signed by the magistrate on the warrant of arrest, to the following effect: "The within named A. B. having been brought before me under this warrant, is committed for examination to the Sheriff of ——— If the Sheriff is not present, the defendant may be committed to the custody of a peace officer. 864. (§ 152.) At the examination, the magistrate must first read to the defendant the depositions of the witnesses examined on taking the information. He must also issue subpoenas, subscribed by him, for witnesses within the State, required either by the prosecution or the defense. tion of 865. (§ 153.) The witnesses must be examined Examinain the presence of the defendant, and may be crossexamined in his behalf. witnesses to be in presence of defendant, etc. Examina tion of 866. (§ 159.) When the examination of witnesses on the part of the people is closed, any witnesses the defendant's defendant may produce must be sworn and examined. witnesses. and separa witnesses. 867. (§ 160.) While a witness is under examina- Exclusion tion, the magistrate may exclude all witnesses who tion of have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other until they are all examined. 868. (§ 161.) The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the Attorney General, the District Attorney of the county, the defendant and his counsel, and the officer having the defendant in custody. NOTE.-The object of this section is to carry out more fully the spirit of Sec. 867. The policy of the statute has always been to prevent the concocting of a charge against the defendant upon collusive or false testimony. The magistrate, with this view, may exclude witnesses while another witness is under examination. The object of that provision might be wholly defeated if, though not present, one witness might be informed of the testimony of another by persons who are present. Another advantage may result from this section. If the examination is necessarily public, the testimony will be spread before the community, and a state of opinion may be created which will render it difficult to obtain an unprejudiced jury. To guard the rights of the defendant against a secret examination, the section provides that it shall not be conducted in private, unless at his request. Who may at the be present examina tion. Testimony, how taken and authenticated. 869. (§ 162.) The testimony given by each witness must be reduced to writing, as a deposition, by the magistrate, or under his direction, and authenticated, in the following form: 1. It must state the name of the witness, his place of residence, and his business or profession. 2. It must contain the questions put to the witness and his answers thereto, each answer being distinctly read to him as it is taken down, and being corrected or added to until it conforms to what he declares is the truth. 3. If a question put be objected to on either side and overruled, or the witness declines answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated. 4. The deposition must be signed by the witness, or if he refuses to sign it, his reason for refusing must be stated in writing as he gives it. 5. It must be signed and certified by the magistrate. NOTE.-The Criminal Practice Act of 1851 contained a section (162) substantially the same as the above. It was repealed in 1855 (Stats. 1855, p. 269), for the reason that it imposed too much labor upon the examining magistrate-a reason that would be equally potential if applied to any provision of the Criminal Code. The Commissioners have restored the section for many rea sons: 1. The examination is had in the presence of the defendant, who could exercise his right of cross-examination, and, therefore, if the witness afterward die or cannot be found in the State, his evidence is available to either party. Under these provisions, taken in connection with Sec. 882, it will seldom be necessary to detain a witness in custody. 2. The testimony taken by the State is open to the inspection of the defendant or his attorney, and will aid materially in the preparations for trial. 3. The testimony taken by the defense enables the District Attorney, who is seldom present at the preliminary examination, to prepare the case for trial. 4. The examination is usually had at once; the testimony is more reliable; and, when once reduced to writing, precludes tampering with the witnesses. 5. Every Justice of the Peace in the State is an examining magistrate, and may hold a person to answer for any offense. The action of a Justice of the Peace is final upon the question of "sufficient cause," unless the testimony is reduced to writing, and can be presented to the Judge on habeas corpus as evidence that there was not "sufficient cause" to believe the defendant guilty of the offense charged. the ex 870. The magistrate or his clerk must keep depositions taken on the information or on the amination, until they are returned to the proper Court; and must not permit them to be examined or copied by any person except a Judge of a Court having jurisdiction of the offense, or authorized to issue writs of habeas corpus, the Attorney General, District Attorney, or other prosecuting attorney, and the defendant and his counsel. NOTE. One of the objects of this section is to keep the evidence from publication when the examination has been secret, and thus to prevent, to as great an extent as possible, the formation of a public opinion that will render the selection of a jury matter of difficulty. when discharged. 871. (§ 163.) If, after hearing the proofs, it ap- Defendant, pears either that no public offense has been committed and how or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged, by an indorsement 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 offense within mentioned, I order him to be discharged." 872. (§ 164.) If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, signed by him, to the following effect: "It appearing to me that the offense in the When and how to be commit |