Magistrate may order be filed. R. 24567. and the grounds on which the arrest was made shall be stated to the magistrate by affidavit, subscribed and sworn to by the person making the statement before the magistrate, in the same manner as upon a preliminary information, as nearly as may be. HEARING BEFORE MAGISTRATE. SEC. 4219. If the magistrate believes from the statements in the affidavit that the offense charged is triable in the county in information to which the arrest was made, and that there is sufficient ground for a trial or preliminary examination, as the case may require, and that it will not be inconvenient for the witnesses on the part of the state that such trial or preliminary examination should be had before him, he shall proceed as if the person arrested had been brought before him on arrest under a warrant, and, if the case be one within his jurisdiction to try and determine, shall order an information to be filed against him. May order take place be- When the of in another county. R. & 4569. SEC. 4220. If the magistrate believes from the statements in the affidavit that the offense charged is triable in the county in which the arrest is ma le, and that there is sufficient ground for a trial or preliminary examination, and that it will be more convenient for the witnesses on the part of the state that such trial or examination should be had before some other magistrate, he shall, by a written order by him signed with his name of office, commit the person arrested to a peace officer, to be by him taken before such magistrate in the same county who has jurisdiction to try or examine the charge as the case may require, and as shall be convenient for the w.tnesses on the part of the state, and deliver the affidavit and the order of commitment to the peace officer, who shall proceed with the person arrested as directed by the order; and such magistrate, when the person arrested is brought before him, shall proceed as on an arrest under a warrant, and, if the case be within his jurisdiction to try and determine, shall order an information to be filed against the person arrested. SEC. 4221. If the magistrate believes from the statements in the affidavit that the offense charged is triable in a county differfense is triable ent from that in which the arrest is made, and that there is sufficient ground for a trial or preliminary examination, he shall, by a written order by him signed with his name of office, commit the person arrested to a peace officer, to be by him taken before a magistrate in the county in which the offense is triable, who has jurisdiction to make either preliminary examination into the charges, or try and determine the same, as the case may require, and, if the offense be a misdemeanor only triable on indictment, shall fix in the order the amount of bail which the person arrested may give for his appearance at the district court of the county in which the offense is indictable, on the first day of the next term thereof, to answer an indictment. inent: dis SEC. 4222. If bail be given as provided in the preced ng secBail: commit- tion, it may be either before the magistrate making the order, or the magistrate in the county in which the offense is triable before whom he is taken under the order, or a magistrate of any county through which he passes in going from the county in which the charge. R. 4570. arrest was made to that in which the offense is triable, or the clerk of the district court of either of said counties; and, when given, the magistrate or clerk taking the same shall make on the order of commitment an order for the discharge of the person arrested from custody, who shall forthwith be discharged accordingly, and to transmit by mail, or otherwise, to the clerk of the district court of the county at which the person arrested is bound to appear, on or before the first day of the next term thereof, and as soon as it can be conveniently done after taking the bail, the affidavits, the order of commitment and discharge, together with the undertaking of the bail, who shall file the same together in his office. SEC. 4223. If bail be not given as provided in the last two Same. preceding sections, before the magistrate in the county in which R. 3 4571. the arrest was made, or if the offense charged is a felony, or a misdemeanor triable on information, the magistrate must deliver the affidavits and the order of commitment to a peace officer, who shall proceed with the person arrested as directed by the order, or provided by law; and the magistrate in the county in which the offense is triable, when the person arrested is brought before him, shall proceed as on an arrest under a warrant, and if the case be within his jurisdiction to try and determine, shall order an information to be filed against the person arrested. [The word "preceding" in the second line, as in the original, is omitted in the printed code.] tody to take agistrate. R. 2 4572. SEC. 4224. In the cases contemplated in the last three sec- officer having tions, the officer having the person arrested in custody, under the person in cus order, shall take him before the proper magistrate in the county him before in which the offense is triable, which is most convenient for the witnesses on the part of the state, unless, in case of a misdemeanor triable on indictment as hereinbefore provided, the person arrested desires to give bail, in which case he shall take him before the most convenient magistrate in the county in which the offense with which he is charged is triable, or any county through which he passes in going from the county in which the arrest was made to the county in which the offense is triable, or before the clerk of the district court of either of said counties for the purpose of giving bail. R. 4573. SEC. 4225. In all cases, the peace officer, when he takes a per- Officers return son committed to him under an order as provided in this chapter how made. before a magistrate, or clerk of the district court, either for the purpose of giving bail, if bail be taken, or for trial or preliminary examination, must make his return on such order, and sign such return with his name of office, and deliver the same to the magistrate or clerk. Right of defendant to counsel R. 4575. C. '51, 2852. Same. C. 51, 2853. Examination. C. 51, § 2854. Change of venue. Same. C. '51, 2855. CHAPTER 12. OF PRELIMINARY EXAMINATIONS. SECTION 4226. When the defendant is brought before the magistrate on arrest, either with or without a warrant, the magistrate must immediately inform him of the offense with which he is charged, and of his right to the aid of counsel in every stage of the proceedings. SEC. 4227. The magistrate must allow the defendant a reasonable time to send for counsel, and, if necessary, must adjourn the examination for that purpose. SEC. 4228. The magistrate, immediately after the appearance of counsel, or, if the defendant require the aid of counsel, after waiting a reasonable time therefor, must proceed to examine the case; provided, however, that before said examination is commenced, said defendant may have a change of venue upon filing an affidavit that the magistrate is rejudiced against him, is a materia! witness for either party, or that the defendant cannot obtain justice before him, as affiant verily believes. On filing of such affidavit a change of venue must be allowed, and the magistrate must immediately transmit all original papers and a transcript of the record entire in the case, to the next nearest magistrate in the township against whom no objection exists, if there be any, if not, to the next nearest magistrate in the county against whom no such objections in the opinion of the justice exists, who shall proceed with said examination as hereinafter provided. Only one such change of venue shall be allowed. SEC. 4229. The examination must be terminated at one session unless the magistrate, for good cause shown, adjourn it. SEC. 4230. No examination can be adjourned for a longer Adjournment. period than thirty days. R. 4579. C. '51, 2856. Bail. C. '51,2857. When no jail. C. '51, 22859. Subpoenas. Depositions. Cross-interrogatories. SEC. 4231. If an adjournment be had for any cause, the magistrate shall commit the defendant for examination, or require him to give ample security for his appearance at the time and place to which the examination is adjourned. SEC. 4232. If there is no jail in the county, the sheriff must retain the defendant in his custody until the examination. SEC. 4233. The magistrate must issue subpoenas for any witnesses required either by the state or by the defendant, and the witnesses who appear at the examination must be examined in the presence of the defendant. SEC. 4234. The deposition of a witness who resides out of the county in which the examination is had, may be taken, on application of the defendant on the order of the magistrate, before any officer authorized to take depositions in civil cases; which order shall not be made until three days after the filing with the magistrate of the written interrogatories to be propounded to the witness; nor until three days after the service of notice on the state, or on the attorney who appears for the state, of the filing of such interrogatories. SEC. 4235. Before the order to take the deposition is made, the state may file cross-interrogatories to be propounded to the witness, which shall be answered by him in the deposition. dence. SEC. 4236. At the expiration of three days from the filing of Read in evithe interrogatories, and the service of the notice thereof on the state as above provided, the magistrate may order the testimony of the witness to be taken in answer to the interrogatories and cross-interrogatories, if any, on file; and the deposition thus taken may be read as evidence on the examination; nor shall the same be excluded because of any irregularity in the taking of it, if the magistrate is satisfied that the irregularity complained of could work no substantial prejudice to the opposite party. [Sec. 4237, which made defendant a competent witness in his own behalf 'n such cases, was repealed by 17th G. A., ch. 168, § 2, by which act that privilege was extended to defendant in all criminal proceedings; see § § 5636 and 4556.] Before the amendment of § 4556, | defendant was not a competent witheld, that it was only on preliminary ness for himself on the trial of an inexamination that defendant in a formation for security to keep the criminal action might be a witness: peace. ($4126): The State v. DarThe State v. Taffer, 38-422; and that rington, 47-518. SEC. 4238. When the defendant testifies in his own behalf, he Cross-examina shall be subject to a cross-examination as an ordinary witness, tion. provided, that, in the cross-examination, the state shall be strictly confined to the matters testified to in the examination-in-chief. TRIAL. R. 4591. SEC. 4239. While a witness is under examination before the Witnesses exmagistrate, he may exclude all others who have not been exam- cluded. ined. He may also cause the witnesses to be kept separate, that C 51, 2867. they may not converse with each other until they are all examined. cluded. persons R. 24552. SEC. 4240. The magistrate must also, upon the request of the Persons exdefendant, exclude from hearing the examination all except the magistrate, his clerk, the peace officer who has the custody of the defendant, the attorney or attorneys representing the state and the defendant and his counsel. SEC. 4241. The magistrate shall, in the minutes of the exam- Minutes of ination, write out or cause to be written out, the substance of the examination. R. 2493. testimony given on the examination by each witness examined C. 51, 2868. before him, showing the name of the witness, his place of residence, and his business or profession, and the amount to which each witness is entitled for mileage and attendance. The minutes so taken by the magistrate are not competent as evidence on the trial: The State r. Collins, 32-36; The State v. Hull, 26-292; nor are they admissible for the purpose of impeaching a witness: The State v. Hayden, 45-11. the tes'imony, cannot recover com- These minutes may be used before The magistrate, or a person appoint- : ed by im o write ou the minutes of grand jury: See § 4289. SEC. 4242. After the examination is closed, the magistrate Magistrate's must attach together the complaint, the warrant or order of com- R. 1594. mitment, if any, under which the defendant was brought before C. 51, 22869him, the minutes of the examination, including all depositions on certificate. 70. Judgment. R. 4595. C. '51, 2871. Same. R. 4596. C. 51, 2872. file with him and used in the examination, and annex thereto his certificate, which must set forth in substance the time and place of examination, and that the minutes thereof are true, and the certificate must be signed by the magistrate, with his name of office. SEC. 4243. If, after hearing the testimony, it appear to the magistrate, either that a public offense has not been committed, or that there is no sufficient reason for believing the defendant guilty thereof, he must order the defendant to be discharged; and such order must be endorsed on the minutes of the examination or annexed thereto and signed by the magistrate, to the following effect: "There being no sufficient cause for believing the defendant guilty of the offense herein mentioned, or of any other offense, I order him to be discharged." SEC. 4244. If it appears from the examination that a public offense triable on indictment has been committed, and that there is sufficient reason for believing the defendant guilty thereof, the magistrate shall in like manner endorse on or annex to the minutes of the examination, an order signed by him to the following effect: "It appearing to me by the within minutes that the offense therein mentioned, or any other offense triable on indictment, according to the fact, stating generally the nature thereof, has been committed, and there is sufficient cause for believing the defendant guilty thereof, I order that he be held to answer the same." The fact that such finding was made | such fact is a proper matter of deby the justice will be presumed in an fense: The State v. Patterson, 23action on a bail bond given by the 575. person bound over; but it not made, Order admit- Same. Mittimus. C. '51, 2875. BAIL. SEC. 4245. If bail be taken by the magistrate, the following words in substance must be added to the order mentioned in the preceding section," and I have admitted him to bail to answer thereto by the undertaking hereto annexed," and the undertaking of bail must be annexed thereto. SEC. 4246. If bail be not given by the defendant, then the magistrate must add to the order mentioned in section forty-two hundred and forty-four the following words in substance: "and that he be admitted to bail in the sum of (here state the amount,) and that he be committed to the jail of the county of (here name the county,) until he give such bail." SEC. 4247. If the magistrate order the defendant to be committed, he shall make out a warrant of commitment, signed by him with his name of office, and deliver it with the defendant to the officer to whom he is committed, or, if the officer be not present, to a peace officer who shall deliver the defendant into the proper custody, together with the warrant of commitment, which warrant may be in form following: THE STATE of Iowa: To the sheriff of........county. An order having been this day made by me, that A...........B.........., (the name of the defendant,) be held to answer upon a charge of |
