acquittal thereof in the former, is a bar to a prosecution or indictment therefor in this state.

See Section 679 of Penal Code: fifth amend. Federal Constitution.

§ 140. Conviction or acquittal in another county, a bar, where the jurisdiction is concurrent.-When a crime is within the jurisdiction of two or more counties of this state, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment thereof in another.

TITLE II.

OF THE TIME OF COMMENCING CRIMINAL ACTIONS.

SECTION 141. Prosecution for murder may be commenced at any time. 142. Limitation.

143. Defendant out of state.

144. Indictment deemed found, when presented in court and filed. § 141. Prosecution for murder may be commenced at any time. There is no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.

Limitation.-Upon the trial of an indictment for murder, found more than five years after the death of the party killed, the defendant can be convicted of manslaughter. People v. Dowling, 1 N. Y. Cr., 531.

The court, in People v. Dowling, ante, followed the case of Clark v. State, 12 Georgia, 350. In the latter case, a similar statute was held to apply to the indictment on which the defendant was arraigned and tried, and not to the minor grade of offense, for which he might be found guilty on the trial for the higher grade of crime, of which the grand jury accused him.

In People v. Mather, 4 Wend.. 230, the crime of an accessary before the fact to a murder is murder, and is not barred by the statute of limitations.

§ 142. Limitation.-An indictment for a felony, other than murder, must be found within five years after its commission, except where a less time is prescribed by statute. And an indictment for misdemeanor must be found within two years after its commission.

Amended by chap. 412 of 1887.

This amendment changed the word "crime" into "felony," and added the latter sentence of the present section.

Limitation.-While an indictment for murder may be found at any time after the death of the victim, other indictments must be found within five years. People v. Dowling, 1 N. Y. Cr., 531.

Where, upon the reversal of the judgment and the allowance of a demurrer to the indictment, more than two years have elapsed since the commission of the alleged misdemeanors, the defendant cannot be reindicted. People v. O'Donnell, 15 St. Rep., 141; 46 Hun, 362; 7 N. Y. Cr., 350; 10 N. Y. Supp.,

252.

Averment.-The statute of limitations is not of the nature or character of an exception which forms part of the offense, and it need not be set out and negatived in the indictment. People v. Durrin, 2 N. Y. Cr., 328.

Commencement.-A criminal action is commenced when the indictment is filed and becomes a record of the court. People v. Beckwith, 2 N. Y. Cr., 29; People v. Smith, id., 45.

Construction.-A statute, limiting the time within which indictments

must be found, is to be construed liberally, when construction is required, in favor of the criminal. People v. Lord, 12 Hun, 282.

Demurrer. A demurrer cannot be interposed upon the ground that it appears by the indictment that the prosecution is barred by the statute of limitations. People v. Durrin, 2 N. Ÿ. Cr., 328.

How pleaded.-The defense of the statute of limitations, cannot be set up by special plea, under the Criminal Code, but may be proved under the general issue of not guilty. Id.

Retroactive.-A statute of limitations, increasing the length of time within which indictments may be found, is not retroactive. People v. Lord, 12 Hun, 282.

§ 143. Defendant out of state.-If, when the crime is committed, the defendant be without the state, the indictment may be found within the term herein limited after his coming within the state, and no time, during which the defendant is not an inhabitant of, or usually resident within, the state, or usually in personal attendance upon business or employment within the state, is part of the limitation. [Am'd by ch. 552 of 1895. To take effect Sept. 1, 1895.] This amendment inserted the words "or usually in personal attendance upon business or employment within the state."

It is essential to the running of the statute of limitations that the defendant should have been within the state. People v. Durrin, 2 N. Y. Cr., 334.

§ 144. Indictment deemed found, when presented in court and filed.—An indictment is found, within the meaning of the last three sections, when it is duly presented by the grand jury in open court, and there received and filed.

TITLE III.

OF THE INFORMATION AND PROCEEDINGS THEREON TO THE COMMITMENT INCLUSIVE.

CHAPTER I. The information.

II. The warrant of arrest.

III. Arrest by an officer, under a warrant.

IV. Arrest by an officer, without a warrant.

V. Arrest by a private person.

VI. Retaking, after an escape or rescue.

VII. Examination of the case, and discharge of the defendant or holding him to answer.

CHAPTER I.

THE INFORMATION.

SECTION 145. Information defined.

146. Magistrate, defined.

147. Who are magistrates.

§ 145. Information defined. The information is the allegation made to a magistrate, that a person has been guilty of some designated crime.

Sufficiency.-A plain statement of the acts of which complaint is made, without stating the evidence, is sufficient. Hewitt v. Newberger, 48 St. Rep., 813; 66 Hun, 232: 20 N. Y. Supp.. 913.

Informations lodged before committing magistrates, and warrants issued upon them, are not expected to be drawn with the same technical accuracy that an indictment should be. Id.

The information to the magistrate must allege that the defendant has been guilty of some designated crime. People ex rel. Baker v. Beatty, 39 Hun, 477.

Informations are sufficient, if they specify, in plain terms, the charge made, so stated that the person proceeded against knows exactly what is charged against him. Hewitt v. Newberger, ante.

See People v. Nowak, 24 St. Rep., 275; 1 Silv. (Sup. Ct.), 412; 7 N. Y. Cr., 70; 5 N. Y. Supp., 240; Matter of Ramscar, 1 N. Y. Cr., 35; 63 How.. 255; 10 Abb. N. C., 444.

§ 146. Magistrate, defined.-A magistrate is an officer, having power to issue a warrant for the arrest of a person charged with a crime.

A police justice is a magistrate having power to issue a warrant for the arrest of a person charged with a crime. County of Orleans v. Winchester, 45 St. Rep., 411; 18 N. Y. Supp., 669.

See People v. Nowak, 24 St. Rep., 275; 1 Silv. (Sup. Ct.), 412; 7 N. Y. Cr., 70; 5 N. Y. Supp., 240; Matter of Killoran v. Barton, 26 Hun, 649; 14 W. Dig., 490.

§ 147. Who are magistrates.—The following persons are mag

istrates:

1. The justices of the supreme court.

2. The judges of any city court.

3. The county judges and special county judges.

4. The city judge of the city of New York, and the judges of the court of general sessions in the city and county of New York.

5. The justices of the peace.

6. The police and other special justices appointed or elected in a city, village or town.

7. The mayors and recorders of cities. But in the city of New York, the only magistrates authorized to commit children to institutions, are the justices of the supreme court, the recorder, the city judge of the city of New York, and judges authorized to hold the court of general sessions, and the police justices.

Amended by chap. 279 of 1892.

This amendment changed, in first subdivision, the word "judges" into "justices;" in fourth subdivision, the word "judge" into "judges," and added to subdivision 7 the latter sentence.

See notes under preceding section.

A coroner is not one of the magistrates before whom proceedings under sections 188-290 may be instituted. People v. McGloin, 1 N. Y. Cr., 159; 91 N. Y., 241; 12 Abb. N. C., 172; 16 W. Dig., 255; aff g 28 Hun, 150; 1 N. Y. Cr., 105; 16 W. Dig., 138.

The mayor of Long Island City is, by virtue of his office, a magistrate, and clothed with judicial authority to conduct examinations upon criminal charges. Hommert v. Gleason, 38 St. Rep., 343; 14 N. Y. Supp., 569.

The recorder of the city of Oswego is a magistrate under this section. Matter of McFarland, 36 St. Rep., 574; 59 Hun, 306; 13 N. Y. Supp., 22.

See People v. Nowak, 24 St. Rep., 275; 1 Sil. (Sup. Ct.), 412; 7 N. Y. Cr., 70; 5 N. Y. Supp., 240; People v. Bates, 38 Hun, 181: Matter of Killoran v. Barton, 26 Hun, 649; 14 W. Dig., 490 County of Orleans v. Winchester, 46 St. Rep., 964; 18 N. Y. Supp., 669.

CHAPTER II.

THE WARRANT OF ARREST.

SECTION 148. Examination of the prosecutor, and his witnesses,

information.

149. Depositions, what to contain.

150. In what case warrant of arrest may be issued.
151. Form of the warrant.

upon the

152. Name or description of the defendant, in the warrant and statement of the offense.

153. Warrant to be directed to and executed by a peace officer. 154. Who are peace officers.

155. Warrant issued by certain judges.

156. Defendant, how to be disposed of.

157. Indorsement on the warrant for service in another county, how and upon what proof to be made.

158. Defendant, arrested for felony.

159. Defendant, arrested for a misdemeanor.

160. Proceedings on taking bail from the defendant, in such case. 161. Proceedings, where he is admitted to bail in such case, but

bail is not given.

162. Prisoner carried from county to county.

163. Power and privilege of officer.

164. When magistrate issuing the warrant is unable to act.

165. Defendant, upon arrest, to be taken before a magistrate.

166. Defendant before another magistrate than the one who issued the warrant.

§ 148. Examination of the prosecutor and his witnesses upon the information.-When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.

Sufficiency of information.-An affidavit, which does not set forth a particular crime, but makes a general charge of guilt without stating any facts showing a criminal offense, is not a sufficient basis for the examination of the complainant and his witnesses. People v. Nowak, 24 St. Rep., 275; 1 Silv. (Sup. Čt.), 412: 7 N. Y. Cr., 70; 5 N. Y. Supp., 240.

The omission of the complainant to sign the deposition taken before a committing magistrate, as required by this section, is an irregularity which will be held to be waived, unless the defendant has interposed the objection at the first available opportunity. People v. Winness, 3 N. Y. Cr., 90.

A complaint in writing, charging a criminal offense, though on information and belief only as to the person suspected of having committed it, is sufficient to authorize an investigation before a magistrate by the examination of witnesses. Blodgett v. Race, 18 Hun, 132.

Warrant.-The justice acquires jurisdiction to issue the warrant for the arrest of the accused from the information laid before him. Tracy v. Seamans, 7 St. Rep., 145.

A warrant, which recites that it was issued upon information on oath, and has the form prescribed by section 151 of the Code of Criminal Procedure, is sufficient. People v. Johnson, 13 St. Rep., 48; 46 Hun, 671; 7 N. Y. Cr., 402.

See Nowak v. Waller, 31 St. Rep., 458; 10 N. Y. Supp., 199.

§ 149. Depositions, what to contain.-The depositions must

set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant.

See notes under section 890, post.

Depositions. The depositions, upon which a warrant for the arrest of an offender is issued by a magistrate, may be made on information and belief, where the acts and circumstances, on which such information and belief are founded, are given. People v. McIntosh, 5 N. Y. Cr., 39.

The deposition must set forth the facts tending to establish the crime and not merely the conclusions of the witnesses. Matter of Rothaker, 11 Abb N. C., 122.

Where the facts, stated in the depositions, do not justify the issuing of a warrant, an action for false imprisonment will lie against a person who, with a bad intent, prepared and procured a warrant to be issued, and gave directions for its service. Loomis v. Render, 2 St. Rep., 157; 41 Hun, 268. The justice has no right to issue a warrant, where the facts, set forth in the depositions, do not justify it. Id.

An affidavit not prepared by the justice, and, in no sense, a statement of facts tending to show a criminal offense, does not constitute a deposition within the meaning of this section. People v. Nowak, 24 St. Rep., 275; 1 Silv. (Sup. Ct.), 412; 7 N. Y. Cr., 70.

See Tracy v. Seamans, 7 St. Rep., 145.

§ 150. In what case warrant of arrest may be issued.-If the magistrate be satisfied therefrom, that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.

Sufficient basis.-The justice is required, by section 150 of the Code, to issue a warrant in all cases on sufficient complaint made. People ex rel. Fraser v. Board, etc., 17 St. Rep., 875.

See notes under section 149, ante.

The question is presented to the magistrate whether or not the information, embraced in the depositions, states any crime which authorizes the issuing of a warrant. Tracy v. Seamans, 7 St. Rep., 145.

The magistrate must have evidence of probable cause, both as to the commission of the offense and the guilt of the offender, before he can have jurisdiction to cause the arrest. Blodgett v. Race, 18 Hun, 132. Suspicion and belief as to the defendant's guilt, are insufficient. Id.

The deposition must tend to establish the commission of the crime, and must state the particulars of a specific offense. People v. Nowak, 24 St. Rep., 275; 1 Silv. (Sup. Ct.), 412; 7 N. Y. Cr., 70.

All that is required to protect a magistrate in issuing a criminal warrant is, that the evidence produced is colorable,-something upon which the judgment is called upon to act in determining the question of probable cause. Pratt v. Bogardus, 49 Barb., 89.

On an information for larceny, the depositions must contain an accurate description of the property claimed to have been stolen, and a statement of facts tending to establish the commission of the crime charged, in order to confer jurisdiction upon the magistrate to issue a warrant. Tracy v. Seamans, 7 St. Rep., 146.

See matter of Killoran v. Barton, 26 Hun, 649; 14 W. Dig., 490; People v. Board, etc., 17 St. Rep., 875; 2 N. Y. Supp., 611.

§ 151. Form of warrant.-A warrant of arrest is an order in writing in the name of the people, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in the following form, the blanks being properly filled:

"County of [

"In the name of the people of the State of New York, to any peace officer in the [