(See § 193, ante, and § 208 and cases there cited.) (a) Power to commit.-The magistrate who has power to examine the defendant, has also, in general, independent of any statute, and as incident to his office, power to commit him, if he deems it expedient. (Barb., Cr. Law, page 567. § 215. Undertaking of witnesses to appear; when and how taken.— On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people, a written undertaking, to the effect that he will appear and testify at the court to which the depositions and statement are to be sent, or that he will forfeit the sum of one hundred dollars. (a) Recognizance, what to contain.-A recognizance must contain an acknowledgment of indebtness to the people, and mention the name of the crime, or no action can be maintained upon it. (Barb., Cr. Law, page 565, 6 Hill, 506. A recognizance containing the condition required by statute, is not vitiated by the addition of the words, "as well to the grand and the petit jury and not depart the court without leave." (Barb. Cr. Law, page 565, Dick., J. Recognizance, 431. § 216, (Amended 1883.) Security for appearance of accomplice as witness.-When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witnesses is an accomplice in the commission of the crime charged, he may order the witness to enter into a written undertaking with such sureties, and in such sum, as he may deem proper, for his appearance as specified in the last section. § 217. Witness under sixteen. (Added 1888.)-Children under the age of sixteen years, when such witnesses, may be committed as provided by section two hundred and ninety-one of the Penal Code. $218. Witnesses to be committed on refusal to give security for appearance. If a witness, require to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the magistrate must commit him to prison until he comply or be legally discharged. A 219. (Amended 1887.) Witness may be conditionally examined on behalf of people.-A witness may be conditionally examined on behalf of the people in the manner and with the effect provided by title twelve chapter three of this Code, for taking examination of witnesses conditionally on behalf of the defendant. copy of the order and affidavit upon which the application is made, together with notice of the time and place where the examination is to be taken, shall be served on the defendant, and his counsel, if he have any, at least two days before the time fixed for such examination, and the defendant may be present personally upon such examination to confront the witness produced against him, if the defendant have no counsel the order shall contain a provision assigning counsel to him for the purpose of such examination upon whom a copy of said order, affidavit and notice shall be served. New. § 220. Repealed in 1883. $221. Magistrate to return depositions, statements and undertakings of witnesses, to the court.-When a magistrate has discharged a defendant, or has held him to answer, as provided in sections two hundred and seven and two hundred and eight, he must return to the next court of oyer and terminer or court of sessions of the county, or city court having power to inquire into the offense by the intervention of a grand jury, at or before its opening on the first day, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all undertakings of bail, or for the appearance of witnesses, taken by him. (a) Penalty for disclosing deposition.-A magistrate who willfully permits any deposition taken before him on an examination of a defendant before him, to be inspected by any person save a judge having jurisdiction of the case, the attorney-general, the district attorney of the county and his assistants, the defendant and his counsel, is guilty of a misdemeanor." (Penal Code § 145.) TITLE IV. OF PROCEEDINGS AFTER COMMITMENT, AND BEFORE INDICTMENT. CHAPTER I. Preliminary provisions. II. Formation of the grand jury; its powers and duties. CHAPTER I. PRELIMINARY PROVISIONS. SECTION 222. Crimes; how prosecuted. § 222. Crimes; how prosecuted.-All crimes prosecuted in a court of oyer and terminer, or in a court of sessions, or in a city court, must be prosecuted by indictment. (a) When commenced.-A criminal action is commenced, when the indict ment is filed and becomes a record of the court. Cr. R., 29. (People v. Beckwith, 2 N. Y., CHAPTER II. FORMATION OF THE GRAND JURY, ITS POWERS AND DUTIES. SECTION 223, 224. Grand jury defined. 225, 226, 227. For what courts to be drawn; the order. 228. Misdescription. 229. Mode of selecting grand jurors. 230. If sixteen grand jurors do not appear, additional number to be ordered. SECTION 231, 232, 233. Manner of designating the additional grand jurors. 234. Summoning the additional grand jurors, and compelling their attendance. 235. When new grand jury may be summoned for the same court. 237. Who may challenge an individual grand juror. 238. Causes of discharge of the panel. 239. Causes of challenge to an individual grand juror. 240. Manner of taking and trying the challenges. 241. Decision upon the challenge. 242. Effect of allowing a challenge to an individual grand juror. 244. Appointment of foreman. 245, 246, 247. Oath of the foreman and the other grand jurors. 249. Retirement of the grand jury. 250. Appointment of a clerk, and his duties. 251. Discharge of the grand jury. 252. Power of grand jury to inquire into crimes, etc. 253. Foreman may administer oaths. 254. Definition of indictment. 255. Evidence receivable before the grand jury. 256. Same. 257. Grand jury not bound to hear evidence for the defendant, but may order explanatory evidence to be produced. 258. Degree of evidence to warrant an indictment. 259. Grand jurors must declare their knowledge as to commission of a crime. 260. Grand jury must inquire as to persons imprisoned on criminal charges and not indicted; the condition of public prisons, and misconduct of public officers. 261. Grand jury entitled to access to public prisons, and to examine public records. 262, 263, 264. When and from whom they may ask advice, and who may be present during their sessions. 265. Secrets of the grand jury to be kept. 266. Grand jury; when bound to disclose the testimony of a witness. 267. Grand juror not to be questioned for his conduct as such. § 223. Grand jury defined. A grand jury is a body of men, returned at stated periods from the citizens of the county, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county. 3 R. S., 1018, § 26; 1 R. S., 376, § 12. A grand jury has full power to make inquiry and present, by indictment, all persons charged with crime. (People v. Hyler, 1 Park., 566; French v. People, 3 id., 114; People v. Paige, Id., 600; People v. Horton, 4 id., 222; People v. Hefferman, 5 id., 393). § 224. Grand jury defined.—The grand jury must consist of not less than sixteen and not more than twenty-three persons, and the presence of at least sixteen is necessary for the transaction of any business. (a) Twelve must concur.-Twelve of the grand jury must concur, or an indictment cannot be found. (Post., § 268.) (b) Defects in.-When a defect in the constitution of a grand jury, deprives it of the character of a grand jury in a constitutional sense, the court is bound to take notice of it, whether any authority to so do is given by statute or not. (People v. Petrea, 1 Cr. R. 233, 92 N. Y. 128. When the defect is not of that serious character, and the defendant may be held to answer the indictment without invading any constitutional right, then the question is merely one of procedure. (Ib.) (c) When legally drawn.-When the requisite number of ballots has been draw from the only box and list of names made up in the county from which to drawn grand jurors, said list being selected under color of law to serve as such, a grand jury so selected is a legal one. (People v. Fitzpatrick, 1 Cr. R. 425.) (d) Error to swear twenty-four.-It is error to swear twenty-four persons as a grand jury. (People v. King, 2 Caines, 98.) (e) Objection must be taken in court below. However a conviction will not be reversed because the indictment purports to have been found by twentyfour grand jurors, if the objection were not taken in court below. (Conkeg v. People, 1 Abb. Dec. 418; 5 Park., 31) § 225. (Amended 1882.) order.- A grand jury must be drawn for every term of the follow in courts: For what courts to be drawn; the 1. The court of oyer and terminer, except in the city and county of New York, and the county of Kings, and except for extraordinary or adjourned terms; 2. The court of general sessions of the city and county of New York and the court of sessions of the county of Kings; and 3. The city courts whenever an indictment can there be found. (a) Sub. div. 2.-This subdivision has no application to any county in the State except to those named. (People v. Rugg, 3 Cr. R. 178, 98 N. Y. 537.) § 226. (Amended 1882.) For what courts to be drawn; the order.-A grand jury may also be drawn: 1. For every other court of sessions, when specially ordered by the court or by the board of supervisors; 2. For the court of oyer and terminer in the city and county of New York, upon the order of a judge of the supreme court, elected in the first judicial district; 3. For the court of oyer and terminer of the county of Kings, upon the order of a judge of the supreme court elected in the second judicial district. (a) Application to special cases.-This section was intended to provide for the drawing of a grand jury, when no designation had been made by the county judge in persuance of the provisions of section 45 ante,-or where special circumstances existed, which required that a grand jury be drawn and summoned independent of those which are provided for by the other sections of this Code. (People v. Rugg, 3 Cr. R. 178, 98 N. Y. 537.) (Not mandatory.-There is no absolute requirement that a grand jury must be drawn, but merely a declaration that it may be, leaving it a matter of discretion to be exercised as circumstances might demand. (16.) (c) New York and Kings.—Subdivisions 2 & 3 have no application to any counties in the State, save New York and Kings. (Ib.) (4) Harmonizes with all the sections.-Sections 225, 226, 227, and in harmony with 345 ante, and taken together constitute a complete system by which grand juries may be drawn and suinmoned. (Ib.) § 227. For what courts to be drawn; the order.-If made by the court or a judge thereof, the order for a grand jury must be entered upon its minutes, and a copy thereof filed with the county clerk, at least twenty days before the term for which the jury is ordered. If made by the board of supervisors a copy thereof, certified by the clerk of the board, must be filed with the county clerk, at least twenty days before the term; and when so filed, is conclusive evidence of the authority for drawing the jury. (a) Application of.-The provisions of this section do not apply when the provisions in section 45 ante, have been complied with, and the designation herein required to be filed, does not apply. (People v. Rugg, 3 Cr. R. 178, 98 N. Y. 537.) § 228. Misdescription in order.-A misdescription of the title of the court in an order for a grand jury does not affect the validity of the order, if it can be plainly understood therefrom what court is intended. § 229. Mode of selecting grand jurors.-The mode of selecting grand jurors is prescribed by special statutes. (a) Legislative enactments.-It is competent for the legislature to enact such regulations, and make such changes respecting the mode of selecting grand jurors, as it may deem expedient, not trenching, however, upon the essential features of the system. (People v. Stokes, 53 N. Y. 164. People v. Petrea, 92 N. Y. 128.) (b) When a valid grand-jury.--When the requisite number of ballots has been drawn from the only box and list of names made up in the county from which to draw grand jurors, said list being selected under color of law to serve as such, a grand jury so selected is a legal one. (People v. Fitzpatrick, 1 Cr. R., 425. (c) When selected under a void law.-An indictment found by a grand jury of good and lawful men, selected and drawn under color of the law, is a good indictment by a grand jury, within the sense of the constitution, although the law under which the selection was made, is void. (People v. Petrea, 1 Čr. R., 233. 92 N. Y. 128.) (d) Color of lawful authority enough.-It is sufficient to the validity of an indictment that the grand jury acted under color of lawful authority. The prisoner cannot plead that it was irregularly organized. (People v. Dolan, 6 Hun, 232; Id, 493; 64 N. Y., 485.) (e) What irregularity ground for quashing. It is no ground for quashing an indictment, that the list from which the grand jury was drawn, contained one less than the number required by statute. (People v. Harriatt, 3 Park., 112). § 230. If sixteen grand jurors do not appear, additional number to be ordered. If any court of oyer and terminer or court of sessions, except in the counties of Genesee, Orleans, and St. Lawrence, there shall not appear at least sixteen persons duly qualified to serve as grand jurors, who have been summoned, or if the number of grand jurors attending shall be reduced below sixteen, such court must, by order to be entered in its minutes, require the clerk of the county to draw, and the sheriff to summon, such additional number of grand jurors as shall be necessary, and must specify the number required in the order. § 231. Manner of designating the additional grand jurors.—The clerk of the county must forthwith bring into the court the box containing the names of the grand jurors, from which grand jurors in the county are required to be drawn ; and he must, in the presence of the court, proceed publicly to draw the number of grand jurors specified in the order; and when such drawing |