preliminary examination

By waiving preliminary examination, a defendant waives no more than the right which this examination was intended to secure him—the right not to be held in the absence of a finding by the Commissioner of probable cause that he has committed an offense.

The hearing given to a person accused of crime, by a magistrate or judge, exercising the functions of a committing magistrate, to ascertain whether there is evidence to warrant and require the commitment and holding to bail of the person accused. See Bish. New Or. L* § 32, 225. Coroners generally have the powers of a committing magistrate as also have the mayors of cities in many of the states; id. 229 b. In case, as it often happens, there is question as to what precise crime should be charged against the prisoner or whether more than one crime is involved in the facts shown, the commitment should be so framed as to cover them all, leaving to the prosecuting officer and the grand jury the opportunity for election; but if the commitment does not cover all charges it does not discharge the prisoner from liability for the rest; id. § 33. The discharge of a prisoner on a preliminary examination will not operate as a bar to further proceedings; Duffy v. Britton, 47 N. J. L. 251; In re Garst, 10 Neb. 78, 4 N. W. 511. It is said that a person charged with crime, unless a fugitive from justice, is entitled to a preliminary examination; CoL field v. State, 44 Neb. 417, 62 N. W. 875; but it was also held that such examination is not necessary as a basis for finding an indictment; State v. Schieler, 4 Idaho 120, 37 Pac. 272; and that in proper cases the court may direct the prosecuting attorney to submit indictments without such examination; Com. v. Taylor, 2 Dist. Rep. (Pa.) 743. A complaint made on such examination may be dismissed and a new charge prosecuted before another magistrate; State v. Nordstrom, 7 Wash. 506, 35 Pac. 382; but after holding the accused to bail the magistrate cannot discharge him without notice to the prosecutor; Hill v. Egan, 160 Pa. 119, 28 Atl. 646. The denial of the right to be taken before a magistrate of the county in which one is arrested, to give bail does not vitiate a subsequent trial and conviction; Where the evidence seems to warrant the commitment of the accused person, or time is required for the introduction of other evidence or for further investigation, the person may be committed or held to bail for further hearing. The examination may be postponed on account of the physical inability to attend of important witnesses for the state; State v. Aucoin, 47 La. Ann. 1677, 18 South. 709. Generally the offence charged is stated in the complaint and warrant and a preliminary examination is waived; and a plea that there was no such examination will not be entertained after information filed; State v. Myers, 54 Kan. 206, 38 Pac. 296. An objection that there was no preliminary examination must be raised before trial by plea in abatement or motion to quash; Coffield v. State, 44 Neb. 417, 62 N. W. 875. A person arrested and taken before a magistrate for preliminary examination may waive it even where the state constitution secures the right to such examination; People v. Tarbox, 115 Cal. 57, 46 Pac. 896; State v. Larkins, 5 Idaho 200, 47 Pac. 945. See, also, as to waiver of such examinations, Ryan v. State, 83 Wis. 486, 53 N. W. 836; People v. Harris, 103 Mich. 473/61 N. W. 871. It is the duty of the committing magistrate to secure the attendance of witnesses for the prosecution who are examined by him, for which purpose he may require them to give bail for their appearance before the grand jury or in the criminal court, with or without surety which is usually in his discretion; 1 Bish. N. Or. L. 34. Where the preliminary examination is provided for by law, the testimony of the witnesses taken thereat may be afterwards shown in contradiction; People v. Nelson, 85 Cal. 421, 24 Pac. 1006; Dolan v. State, 40 Ark. 454. And the witnesses are liable to the penalties of perjury for false swearing if so authorized, otherwise not; State v. Furlong, 26 Me. 69; 2 Mc Clain, Or. Law § 858. The filing of an information after the preliminary examination, but before a return of it made by the examining magistrate, is a mere irregularity and does not vitiate the proceedings; People v. Tarbox, 115 Cal. 57, 46 Pac. 896. In Colorado, by statute, an Information may be filed without a preliminary examination, upon the affidavit of any person who has knowledge of the commission of the offence and is a competent witness; Holt v. People, 23 Colo. 1, 45 Pac. 374; Noble v. People, 23 Colo. 9, 45 Pac. 376. s Where a complaint charged perjury on a certain date, and examination was waived, and the information subsequently filed charged the commission of the crime on another date, a plea in abatement on the substained; Brown v. State, 91 Wis. 245, 64 N. W. 749. A statutory requirement that the magistrate shall, on preliminary examination, examine the witnesses to support the accusation, does not require that all of the witnesses known to the state shall be examined, but merely sufficient to justify the magistrate in binding over the accused for trial; Emery v. State, 92 Wis. 14G, 05 N. W. 848. United States commissioners holding preliminary examinations have no judicial power, but only authority to determine whether there is probable cause to believe that the offence was committed; U. S. v. Hughes, 70 Fed. 972; and a district judge holding a preliminary examination has only, quoad hoc, the powers of a commissioner; id. Where an examining magistrate certified that he found probable cause to believe that an offence had been committed and had taken bail, it was sufficient to sustain an information without a positive certificate by the magistrate that an offence had been committed; People v. Whittemore, 102 Mich. 519, 01 N. W. 13. In England, when an accused person has been arrested, either without warrant or by a justice's warrant, if he is charged with an offence for which he may be tried before a jury, the justice holds a preliminary inquiry to decide whether he ought or ought not to be sent for trial. The admission of the public during those inquiries is a matter of discretion with the justice. The witnesses for the prosecution are examined under oath and may be cross-examined by tbe defendant or his counsel or solicitor. The evidence is taken down in writing and after the prosecution is closed, it is read in the hearing of the defendant and he is asked whether he has anything to say in answer to the charge, being first told that he is not required to speak but that whatever he does say will be taken down in writing and may be given in evidence against him on the trial. The defendant is then allowed to call witnesses to prove his Innocence. He may examine these himself or by his counsel or solicitor, and they may be cross-examined by the prosecutor. The defendant may not be questioned nor may he give evidence on his own behalf, except in certain special cases. If he choose to give evidence on oath he is liable to be cross-examined by the prosecutor. If a prima facie case is not made out the defendant is discharged. If the justices are of opinion that a case has been made out they send him to trial. Hearings may be adjourned upon reasonable grounds to a stated time and place, in which case the accused is either removed under custody or discharged on his own recognizance, with not exceed eight days. If the accused be held for trial, the prosecutor and the witnesses are bound by recognizance to appear and give evidence at the trial. The accused will not be released on bail when the charge is treason. In cases of felony and a large number of misdemeanors, the justice has a discretion in the matter. In case of misdemeanors not specially provided for, they have no power to refuse bail. Hay era ft, Exec. Pow. in Iiel. to Crime. As to present French system, see Juge d* Instruction. See Prisoner.

The examination of a person charged with crime, before a magistrate, as above explained. See In re Doiph, 17 Colo. 35, 28 Pac. 470; Van Buren v. State, 65 Neb. 223, 91 N. W. 201,

Defined under Examination in Black's Law Dictionary.