
    The People vs. James Smith.
    In the ex" ■animation of :a prisoner, his ■confession ■ought to appear in his -own words; but if it appear in the .form of question and an.■swer, it is no igood ground why the examination should not be read upon his ¿rial. -
    
      Petit Larceny.
    
    
      Maxwell offered to read the examination of the prisoner, which contained a confession of the felony, and also that he had been before convicted of a petit larceny, and had just been released from prison. This information was derived from him by the committing magistrate, in the form of question and answer, upon his examination.
    
      Price, his counsel,
    
    objected, that the examination could not be read. It contained, he said, a fact that could not be admitted in evidence to the jury, to wit, that he had, before been convicted of a felony: and that it also appeared on the face of the affidavit, that this fact had been drawn from the prisoner by questions put to him, which he leged was an unfair way to take the examination of any prisoner.
    
      Maxwell replied,
    that it was impossible to avoid taking the examination in the manner alluded to, that it was sometimes the only way that an examination could be effected : the prisoner would refuse to tell his story, and often refuse to answer any questions put to him.
   By the Court.

“We are inclined to think the examin- “ ation may be read. It is certainly improper to introduce matter into it that is not strictly evidence. Such “ questions ought to be avoided by the magistrate, but if “ they are answered and made part of the record, we “ think it may nevertheless be read. The second objection “ that the examination is in the form of question and an- “ swer, cannot prevail. The prisoner ought to tell his “ story in his own words, and they ought to appear to be “so in the examination. We cannot, however, decide that “ for this cause the examination is not legal evidence. Let “ the examination be "read to-the jury.”

It was read, and the prisoner was convicted.

Note.—Formerly no man was compelled to accuse himself. The maxim ■nemo tenebainr prodere seipsum, prevailed in criminal examinations and trials without a single exception.

The statutes of 1 and 2 P. and M. c. 13, was passed, and also, 2 and 3 P. & M. c. 10, authorizing the examination of prisoners, and also of witnesses against them. Under these statutes prisoners are examined in England for any felony committed. It was a kind of judicial trial; for upon the examination of the prisoner himself, and such witnesses as the magistrate is bound to examine,' if it clearly appears, the crime was not committed, or that the prisoner did not commit it or that the suspicion entertained against him is groundless, must be discharged, otherwise he is committed, or gives bail for his appearance.

p^e authority under which examinations are taken in New York, is to be found in the act declaring the powers and duties of justices of. the peace, passed April 13, 1813. Rev. Laws, vol. 2 p. 507. This act in relation to examinations, is but a copy of the English statute. . The English decisions upon this subject, are, therefore, in force here.

Under these statutes the following principles have been decided:

The prisoner, upon being brought before a magistrate, should be immediately, or as soon as the nalwre of the case will admit, examined and committed, bailed, or discharged. 2 Hale, 120.

Cro Eliz 829. 2 Hale, 120

the time included in the words, “immediately, or as soon as the nalwre of the case will admit,” is indefinite. This time seems to be extended to three days by Lords Hale and Hawkins ; but it is said by Chitty, in his excellent treatise on criminal law, that the best regulated police offices allow even twenty days, from the time the prisoner is first brought before the magistrate, to his final discharge or acquittal. The practice of the police in this city is, and has been, to commit for examination and that examination haí been continued from day to day to the period of three days, but has never been extended beyond it, but by absolute necessity.

The magistrate being a judicial officer, of course, must decide whether the case requires more than one examination; if not the prisoner should be immediately examined, and then immediately discharged or committed.

Moore, 402. 2 Hale, 120.

phe commitment for examination need not be by written process; a verbal authority to the constable is sufficient; nor in any subsequent examination is it necessary to use any written process to bring the prisoner before him; but after the final examination is finished, he must be formally committed by mittimus signed by the magistrate, containing the charge.

It is customary, however, in the police-officer of this city, to commit by mittimus, in the first instance ; and at every subsequent examination to give a written authority to bring him up.

After the prisoner is brought before the magistrate, the greatest should be observed, that no inducement to hope or fear becheld out to him: no promise of favor, or threats of punishment; for these will infalliably vitiate the examination. It may even be advisable to caution the prisoner, that he has nothing to hope for from any confession he may make : that it must be voluntary, and of his own free will. By such a caution some examinations, that are now rejected in consequence of favor held out by officers who made the arrest, and others, might be read in evidence upon the trial.

^ g a e ^ 263_291-386 2 Leach, 561.

A prisoner has rights, even before an examining magistrate ; and it is of importance to him, that they are not lost at this interesting period of the charge. He ought to be examined to the charge against him, and to that only: all extraneous facts should be avoided. Nor should any advantage be taken of his ignorance, to induce a confesssion that would not be proper evidence upon his trial. Even if the prisoner confess a fact not induced by questions put to him, but being part of the regular chain of the story he tells, not relating to the charge: for instance, a confession of a former felony, and a pardon, it cannot be a question of doubt, if such facts ought to be part of the record of the examination. If it is made part of it, the prisoner is deprived of one very important principle of criminal law. It would not be admitted as evidence to the jury on his trial, but being part of the record of his examination, it is read to the jury, and the benefit of an impartial trial lost.

j)U(¡es of Man, vol. 1. P*

And why should the prisoner’s guilt be wrung from himself % The magistrate has not only the power to examine those who brought the ‘ prisoner before him, but he may send for others, whom the prosecutor swears know any facts in relation to the charge, and may issue his warrant for any person he believes can give testimony in favor of the prosecution. And here it ought not tobe forgotten by the magistrate, that the liberty of a human being, however degraded, is important to him. That he has the power to bring before him any person the prisoner may wish examined in his favor. The duty of a magistrate in such a case need.not be pointed out: he ought certainly to send for them, and also examine them.

With respect to the manner of taking the examination, it is to be observed that the very essence of it consists in being free and voluntary, and that the ingenious, and often complicated, questions of a man in an offipial station to a prisoner, who is vibrating between hope and fear, whose mind is in a state of perturbation, are not calculated to obtain that object. The examination should, therefore, assume the narratative form. The prisoner should be allowed to tell his story free from any restraint, and not by subtle and intricate questions involve him in a greater crime than he was supposed to have committed. Questions, of course, may be asked, but they should be for the developement of truth, and not for the purpose of eliciting a contradiction.

The examination of witnesses for the prosecution ought always to be in the presence of the prisoner, he ought to have the benefit of a cross-examination of them; a privilege too often denied, either by negligence or ignorance, Leach’s Cases, Vol. 1. p. 202—309. Ibid, vol. y 2. 500—503. 5 Mod. 163—4.

The witnesses against a prisoner ought to be examined separate from each other; no opportunities of conspiracy or combination ought to be afforded them : those that have already been examined should not be allowed to mix with those that have not.

The magistrate should reduce the examination to writing, as near as possible in the words and language used by the prisoner, and nothing inserted but such facts as are necessary to prove the felony. Not only those facts which make against him, but also those in his favor, should be set down.

The authorities containing the law upon this subject may be found in 3 Inst. 79. 4 Black, Com. 359. Leach. Cas. vol. 1. 202—309. Dalt. J., c. 165. 2 Leach. Cas..263. 1 Hale, 586. 2 Leach Cas. 310— 637—552. 1 Stra. 421. 14 East, 85, 6 T. R. 530. Cro. Eliz. 820. 1 Hale, 585—6. Hawk. c. 2. c. 16 s. 12. 7 East, 533. 2 Hale, 122. City Hall Rec, vol. 1. p. 81.: vol. 2. p. 54—61.  