Notice to be given to judge or magistrate, etc.

FORM OF COMMITMENT OF PRISONER TO AWAIT A REQUISITION.

To the keeper of the jail of the county aforesaid, greeting: Whereas, E. F. has been arrested on a complaint in writing signed and sworn to by C. D., that the said E. F. is a fugitive from justice from the state of where he stands charged with a crime committed in that state, viz.: [here describe the offense] that said acts are, by the laws of said state of

an offense, and that

said acts, if they had been committed in the State of Ohio, would, by the laws thereof, have been a crime; that the said E. F. has fled from said state of —, and has taken refuge in said county and State of Ohio; and, whereas, the said E. F. has been examined by me on said charge, and has been ordered by me to stand committed to the jail of said county for the period of days, unless he be discharged or surrendered up, in the meantime, by due course of law. Therefore, in the name of the State of Ohio, I command you to receive the said E. F. into your custody, in the jail of the county aforesaid, there to be kept for said term of — days, or until he be discharged or surrendered up by due course of law.

Given under my hand and seal, this

day of

A. B., Justice of the Peace.

SEC. 29. Notice to be given to judge or magistrate. Whenever any person is committed to jail by any judge or justice of the peace under the preceding section, such judge or justice of the peace shall forthwith give notice, by letter or otherwise, to the sheriff of the county in which such offense was committed, or to the person injured by such offense; and no person so committed shall be detained longer in jail than is necessary to allow a reasonable time to the persons so noti. fied, after they shall have received such notice, to apply for and obtain the proper requisition for the persons so committed. (Sayler, 2191, § 213.)

For proceedings after the issuing of the requisition, see Sayler, chap. 2979.

BAIL.

SEC. 30. Sureties in recognizance required to justify. A court or officer required to take or accept any bail or recognizance,

Qualifications of sureties, etc.

or to approve the sureties offered on any bond or recognizance, may require any person offered as surety thereon to make affidavit of his qualifications, or to be examined orally under oath touching the same; and such court or officer may take such affidavit or administer such oath. (Sayler, 3202, § 1.)

SEC. 31. Qualifications of sureties. One surety in every such bond or recognizance must be a resident of the county in which the prosecution is pending, and the sureties must be worth double the sum to be secured, and must have property in this state liable to execution equal to the sum to be secured. When two or more sureties are offered to the same bond or recognizance, they must have in the aggregate the qualifications provided in this section. (Sayler, 3202, § 2.)

SEC. 32. Recognizance; its conditions. If the offense for which the prisoner is held to answer be bailable, and the prisoner offer sufficient bail, a recognizance shall be taken for his appearance to answer the charge before the court of common pleas on the first day of the next term' thereof, or before the probate court, if that court has jurisdiction of the offense, on the first day of the next term thereof for the trial of criminal cases, and not depart without leave; or, if such court is at the time in session, the recognizance shall require the accused to appear forthwith before it; but no recognizance requiring the accused to appear at the next term shall be rendered invalid by the fact [that] such court is in session. (Sayler, 2125, § 43; 2126, § 44.)

58,

For form of recognizance of accused, see Title II, chap. 2, sec. P. 362.

Rearrest.—If a justice of the peace has been imposed on to receive insufficient bail, he may arrest again, and hold to better bail. (Carothers v. Scott & Watt, Tappan, 227.)

SEC. 33. Prisoner may be held to answer for a higher crime than charged. If, on the examination, it appear to the magistrate that the accused has committed an offense of a higher grade than that charged, he may be held to answer therefor. (Sayler, 2126, § 45.)

Recognizance for different grade of offense than charged.—In all 1See Bishop v. State, 16 Ohio St. 419.

Proceedings when prisoner fails to give bail, etc.

cases a recognizance may be required for an offense of a less grade than the one charged against the defendant, provided the lesser offense is one that is included in the greater, as shown in the charge. As, for instance, if murder in the first degree by poisoning be charged, a recognizance may be required for poisoning with intent to kill, if the proof fails to show that the death was caused by the poison administered. And if the charge be for murder by shooting, the recognizance may be for shooting or shooting at with intent to kill or wound. Or if the charge be for assault with intent to commit murder, rape, or robbery, the recognizance may be for an assault only. So, likewise, it is provided by this section, that the recognizance may be required for a higher grade of offense than the one charged. The magistrate should, however, be cautious to do the accused no injustice by holding him to recognize for an offense, the proof of which he had no reason to expect would be made against him on the examination. Likewise where one is charged with an offense, the attempt of which also constitutes an offense, proof that he made the attempt only, will be sufficient to require him to enter into a recognizance for the same.

SEC. 34. Proceedings when prisoner fails to give bail. If the offense be not bailable, or sufficient bail be not offered, the prisoner shall be committed to the jail of the county in which the same is to be tried, there to remain until he be discharged by due course of law. (Sayler, 2126, § 46.)

SEC. 35. Duties of clerk on receipt of recognizance and record. When a transcript or recognizance is received by the clerk, he shall enter the case upon the appearance docket of the court, together with the date of the filing of the transcript or recognizance, the date and amount of the recognizance, the names of the sureties, and the costs; whereupon such recognizance shall be considered as of record in such court; and proceeded on by process issuing out of said court in the same manner as if the same had been entered into before such court; and when any court having cognizance of an offense shall take a recognizance, it shall be a sufficient record thereof to enter upon the journal of such court the title of the case, the crime charged, the names of the sureties, the amount of 'State v. Daily, 14 Ohio, 91; State v. Williams, 14 Ohio St. 140.

Examining court to be held by probate judge, etc.

such recognizance, and the time therein required for the appearance of the accused; but in making up the complete record, when one is required to be made, all recognizances, whether returned to or taken in such court, shall be recorded in full, if required by the prosecuting attorney or the accused. (Sayler, 2585, § 47.)

This day came the defendant, and with J. H. as his surety, entered into recognizance, [or omit the surety, and say, entered into his own recognizance,] before the court in the sum of conditioned for his appearance at the

answer said charge.

dollars,

term of this court to

ENTRY WHEN PROSECUTING ATTORNEY OR ACCUSED REQUIRE RECOGNIZANCE TO BE RECORDED IN FULL.

[Title.] Indictment for

This day came the defendant, and with J. H. as his surety, entered into recognizance in the words and figures following, to wit: [copy recognizance in full.]

SEC. 36. Examining court to be held by probate judge; when and how. When any person shall have been committed to jail, charged with the commission of an offense, and wishes to be discharged from such imprisonment, the sheriff or jailer shall forthwith give [to] the probate judge, clerk, and prosecuting attorney of the proper county, at least three days' notice of the time of holding an examining court, whose duty it shall be to attend, according to such notice, at the courthouse; and said judge, having examined the witness (the person charged included, if such person request an examination), shall discharge the accused if he find there is no probable cause for holding him to answer; otherwise he shall admit him to bail or remand him to jail; and the probate judge shall have power to adjourn from day to day during such examination, or for such longer period as he may deem neces

When accused was insane or an idiot at commission of offense.

sary for the furtherance of justice, on good cause shown by the state or the accused. (Sayler, 2128, § 48.)

Application of section.-This section does not apply to persons committed on indictment. (Kendle v. Tarbell, 24 Ohio St. 196.)

SEC. 37. When accused was insane or an idiot at commission of offense. If, at any time before the indictment of any person confined in jail, charged with an offense, notice in writing be given by any citizen, to the sheriff or jailer, that such person was insane or an idiot at the time the offense was committed, or has since become insane, such sheriff or jailer shall forthwith give the notices, and an examining court shall be held, as provided in the last section; and if the judge find that such person was an idiot when he committed the offense, or was then and still is insane, or afterward became and still is insane, he shall, at his discretion, proceed as required by law after inquest held. (Sayler, 3221, § 1; 3446, § 1.) SEC. 38. Proceedings when prisoner held to bail. If the examining court adjudge that the prisoner ought to be held to bail, it shall order him to enter into a recognizance, in such sum and with such sureties as it deems sufficient, conditioned for his appearance at the next term of the court which has cognizance of the offense, and in default thereof he shall be remanded to jail. If the court to which the accused is recognized is in session, the recognizance shall require him to appear before it forthwith, and not depart without leave. And in all cases when the prisoner is remanded or held to bail, the court shall require the witnesses against him to enter into recognizance to appear at the proper court, as provided in this title; and on taking the recognizance of witnesses, the clerk shall enter upon the journal the title of the case, the names of witnesses recognized, the amount severally fixed as to each, the sureties, if any, and the time when such witnesses are required to appear; and such entry shall be sufficient record of such recognizance. (Sayler, 2585, $ 47.)