But in this case, instead of an undertaking, money must be deposited, as provided in section 648. 2. To appear at the court to which the magistrate is required, by section 220, to return the depositions and statement, upon the defendant being held to answer, after examination: 3. After indictment, either upon the bench warrant issued for his arrest, or upon an order of the court commtting him, or enlarging the amount of bail, or upon his being surrendered by his bail,-to answer the indictment in the court in which it is found, or to which it may be sent or removed for trial. § 617. After conviction and upon an appeal, the defendant may be admitted to bail, as follows: 1. If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal be dismissed: 2. If judgment of imprisonment have been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed. ARTICLE II. BAIL, UPON BEING HELD TO ANSWER, BEFORE INDICTMENT. SECTION 618, 619. By what courts or magistrates defendant may be admitted to bail. 620. At what time defendant may be admitted to bail by a magistrate. 621. In cities, if offence be felony, application for admission to bail must be on notice. 622. Form of order, if made by the court. 623. Form of order, if made by a magistrate. 624. If application be denied by a magistrate, no subsequent application can be made to another magistrate. 625. Violation of last section a misdemeanor. Admission to bail in such case, how revoked or vacated. 626. On denial of application, by a magistrate, defendant may appeal to court. 627. Manner of taking appeal. 628. Decision of court on appeal, final. 629. Bail, by whom taken. 630. How put in; and form of the undertaking. 631. Qualifications of bail. 632-634. Bail, how to justify. 635. Bail may be examined as to sufficiency, 636. Other testimony may be received as to their sufficiency. 637. Decision as to their sufficiency; and filing affidavits of justification and undertaking. 638. On allowance of bail, and execution of undertaking, defendant to be discharged. Form of discharge. 639. If bail disallowed, defendant to be detained until other bail be put in and justify. § 618. When the defendant has been held to answer. as provided in section 208, the admission to bail may be by the magistrate by whom he is so held, as follows: 1. By any of the magistrates mentioned in section 147, when the offence charged is a misdemeanor, or a felony punishable with imprisonment, not exceeding five years: 2. By a judge of the supreme court, a county judge, the mayor or recorder of a city, a city judge, or a judge of the supeior court or court of common pleas of the city of New-York, in all cases where bail may be taken, before conviction, as provided in section 616. § 619. When, by reason of the degree of the offence, the committing magistrate has not authority to admit to bail, the defendant may be admitted to bail by one of the officers having authority to admit to bail in the case, as provided in the second subdivision of the last section, or by the court to which the depositions and statements are returned by the committing magistrate, as provided in section 220, if the case be triable therein, or if not, by the court to which, after indictment, it may be sent or removed for trial. The provisions of the Revised Statutes, on the subject of the courts or officers by whom a person charged with a public offence may be admitted to bail, are as follows: "Officers before whom persons charged with crimes shall be brought, shall have power to let to bail, as follows: "1. The chancellor, a justice of the supreme court, a circuit judge, or a supreme court commissioner, in all cases : "2. A judge of the county courts, in all cases triable in a court of general sessions : "3. A justice of the peace, or alderman of a city, and in the city of New-York, a special justice or an assistant justice, in all cases of misdemeanor, and in all cases of felony where the imprisonment in a state prison cannot exceed five years." 2 R. S. 3d. ed. 796, sec. 31. "The special justices for preserving the peace in the city of New-York shall respectively have power to let to bail, in all cases where a judge of the court of general sessions in the said city is authorized by law to let to bail." Ibid. sec. 32. "The court of oyer and terminer held in any county, shall have power to let to bail, any person committed, before indictment found, upon any criminal charge whatever." Ibid. sec. 33. "The court of general sessions of any county, shall have power to let to bail persons committed to the prison of such county, before indictment found, for any offence triable in such court." Ibid. sec. 34. In addition to these provisions, a special statute, applicable to the city of New-York only, prescribes that the amount of bail ordered by the committing magistrate, shall be altered only by a court having jurisdiction of the offence for which the prisoner was committed, and renders an officer, who violates that provision, guilty of a misdemeanor. 2 R. S., 3d. ed., 670, sec. 102. The last two sections are substituted for the provisions just quoted, so far as relates to the courts, or officers by whom the defendant may be admitted to bail. They preserve the discrimination contained in those provisions, as to the degrees of crime for which each class of courts or officers may admit to bail; and while they substitute in place of officers who are no longer continued, those of the same degree, created under the new constitution, they provide, it is believed, in a less complex manner, as to the courts and officers by whom this power may be exercised. § 620. The defendant may be admitted to bail by a magistrate, as provided in the last two sections, upon being held to answer, or at any time before the return of the depositions and statement, to the court. After that time he can be admitted to bail, only by the court in which the offence is triable, if it be sitting, or if not, by one of the magistrates mentioned in the second subdivision of section 618. It seems proper, that after the jurisdiction of the committing magistrate has ceased over the subject of the complaint, the power to bail should, with all the other proceedings in the case, be vested in the court. In order, however, to prevent the injustice of keeping the defendant in prison, when in the exercise of a sound discretion, he is entitled to be bailed, the power to admit him to bail during the recess of the court, is conferred upon the higher class of magistrates. § 621. In the several cities of this state, if the offence charged be a felony, the application for admission to bail must be upon notice of at least two days, to the district attorney of the county; and the committing magistrate, upon the like notice, in writing, requiring him to do so, must transmit the depositions and statement, or a copy thereof, to the court or magistrate to whom the application for bail is to be made. This section, it will be observed, makes an important discrimination between the cities and other parts of the state, in respect to the mode of applying for admission to bail. In the latter, no notice of the application is made necessary, while in the former, it is required. No one who is conversant with the history of criminal proceedings, need be informed that in cities, and especially in the city of New-York, the most glaring frauds have been perpetrated upon criminal justice, in every stage of the proceedings respecting bail. Either from the looseness with which the magistrates have acted, or the impossibility, under the present practice, of preventing this injustice, the system of bail has become but a legalized mode of effecting the escape of a person charged with crime, and the Commissioners have felt it to be their duty, to provide in every stage of the proceeding, as applicable to these portions of the state, the most stringent regulations, to prevent its continuance. It is there, that the most heinous crimes are ordinarily perpetrated, and as a necessary consequence, that the severest restrictions upon the abuses in this branch of the practice are necessary. Limiting the requirement of a notice to cases of felony, as this section proposes to do, the Commissioners can perceive no injustice in rendering it necessary. That it may operate harshly in some cases, may be admitted. So does every proceeding, which has for its object the investigation of a criminal charge. But when it is taken into view, in how few cases, compared with the number of arrests on charges of high public offences, the presumption of innocence is more than a mere presumption, and that without some degree of severity in the earlier stages of the proceeding, the facilities for defeating public justice |