Legislation § 879. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 216); based on Stats. 1851, p. 231, § 171, which read: "§ 171. Whenever the magistrate shall be satisfied by proof on oath that there is reason to believe that any such witness will not fulfill his recognizances to appear and testify, unless security be required, he may order the witness to enter into a written recognizance with such sureties and in such sum as he may deem meet for his appearance as specified in the last section." § 880. Infants and married women may be required to give security. Infants and married women, who are material witness [es] against the defendant, may be required to procure sureties for their appearance, as provided in the last section. Legislation § 880. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 231, § 172, which had (1) "witnesses" in stead of "witness," and (2) "may in like manner be required" in stead of "may be required." § 881. Witnesses to be committed on refusal to give security for their appearance. If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate must commit him to prison until he complies or is legally discharged. Legislation § 881. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 218); based on Crim. Prae. Act, Stats. 1851, p. 231, § 173, which read: "§ 173. If a witness required to enter into recogni zance to appear and testify either with or without sureties refuse compliance with the order for that purpose, the magistrate shall cominit him to prison until he comply or be legally discharged." § 882. Witness unable to give security may be conditionally examined. When, however, it satisfactorily appears by examination, on oath of the witness, or any other person. that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people. Such examination must be by question and answer, in the presence of the defendant, or after notice to him, if on bail, and conducted in the same manner as the examination before a committing magistrate is required by this code to be conducted, and the witness thereupon discharged; and such deposition may be used upon the trial of the defendant, except in cases of homicide, under the same conditions as mentioned in section thirteen hundred and forty-five; but this section does not apply to an accomplice in the commission of the offense charged. [Amendment approved 1905; Stats. 1905, p. 763.] Constitutional provision. The constitution provides that "the legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of wit nesses in criminal cases, other than cases of homicide, when there is a reason to believe that the witness, from inability or other cause, will not attend at the trial": Const. 1879, art. i, § 13. Legislation § 882. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 219); based on Crim. Prac. Act, Stats. 1851, p. 231, §§ 174, 175, which read: "§ 174. When, however, it shall satisfactorily appear by the examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people; such examination shall be by question and answer, and shall be conducted in the same manner as the examination before a committing magistrate is required by this act to be conducted, and the witness shall thereupon be discharged. § 175. The last section shall not apply to the prosecutor or to an accomplice in the commission of the offense charged." When enacted in 1872, § 882 read: "882. When, however, it satisfactorily appears, by examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people; such examination must be by question and answer, and conducted in the same manner as the examination before a committing magistrate is required by this code to be conducted, and the witness thereupon be discharged; but this section does not apply to the prosecutor or to an accomplice in the commission of the offense charged." 2. Amended by Code Amdts. 1877-78, p. 122, (1) making a sentence of the first clause of the section; (2) in second sentence, (a) adding, after "question and answer," the words "in the presence of the defendant, or after notice to him, if on bail," and (b) omitting "to the prosecutor or" after "does not apply." 3. Amendment by Stats. 1901, p. 483; unconstitutional. See note, § 5, ante. 4. Amended by Stats. 1905, p. 763. § 883. Magistrate to return depositions, etc., to the court. When a magistrate has discharged a defendant, or has held him to answer, he must return, without delay, to the clerk of the court at which the defendant is required to appear, the warrant, if any, the depositions, and all undertakings of bail, or for the appearance of witnesses taken by him. Legislation § 883. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 221); based on Crim. Prac. Act, Stats. 1851, p. 231, § 176, which read: "§ 176. When a magistrate has discharged a defendant, or has held him to answer as provided in sections one hundred and sixty-four and one hundred and sixty-five, he shall return without delay to the clerk of the court at which the defendant as [is] required to appear, the warrant if any, the depositions, the statement of the defendant, if he have made one, and all recognizance of bail or for the appearance of witness taken by him." TITLE IV. Proceedings After Commitment and Before Indictment. Chapter I. Preliminary Provisions. §§ 888-890. II. Formation of the Grand Jury. §§ 894-910. IV. III. Powers and Duties of a Grand Jury. §§ 915-930. Presentment and Proceedings Thereon. §§ 931-937. [Repealed.] CHAPTER I. Preliminary Provisions. § 888. What prosecutions must be by indictment or information. $889. What by accusation or information. § 890. Indictments and accusations, in what court found. § 888. What prosecutions must be by indictment or information. All public offenses triable in the superior courts must be prosecuted by indictment or information, except as provided in the next section. [Amendment approved 1880; Code Amdts. 1880, p. 12.] Offenses, how prosecuted: See ante, § 682. Legislation § 888. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 222); based on Crim. Prac. Act, § 177, as amended by Stats. 1863, p. 158, § 5, which read: "§ 177. All public offenses prosecuted in the district court and county court, must be prosecuted by indictment, except as provided in the next section." When enacted in 1872, § 888 read: "888. All public offenses triable in the district and county courts, must be prosecuted by indictment, except as provided in the next section." 2. Amended by Code Amdts. 1880, p. 12. § 889. What by accusation or information. When the proceedings are had for the removal of district, county, municipal, or township officers, they may be commenced by an accusation or information, in writing, as provided in sections seven hundred and fifty-eight and seven hundred and seventy-two. Offenses, how prosecuted: See ante, § 682. Legislation § 889. 1. Enacted February 14, 1872; based on Stats. 1851, p. 232, § 178, which read: "§ 178. When the proceedings are had for the removal of district, county, or township officers, they may be commenced by an accusation in writing, as provided in section seventy and eighty-three." 2. Amendment by Stats. 1901, p. 483; unconstitutional. See note, § 5, ante. § 890. Indictments and accusations, in what court found. All accusations, informations, or indictments against district, county, municipal, and township officers, must be found or filed in the superior court. Code Amdts. 1880, p. 34.] [Amendment approved 1880; Legislation § 890. 1. Enacted February 14, 1872; based on Crim. Prac. Act, § 179, as amended by Stats. 1863, p. 158, § 6, which read: "§ 179. All accusations against district, county, and township officers, and all indictments, must be found in the county court." § 890 was enacted in 1872, "municipal" was omitted. 2. Amended by Code Amdts. 1880, p. 34. When 3. Amendment by Stats. 1901, p. 483; unconstitutional. See note, § 5, ante. CHAPTER II. Formation of the Grand Jury. § 894. § 895. Allowing challenge. Decision upon challenges. [Repealed.] Accepting grand juror. Challenging grand juror. [Repealed.] Effect of allowing a challenge to a panel. [Repealed.] Objections can only be taken by challenge. Appointment of a foreman. [Repealed.] § 894. Accepting grand juror. Before accepting a person drawn as a grand juror, the court must be satisfied that such person is duly qualified to act as such juror, but when drawn and found qualified he must be accepted unless the court, on the application of the juror and before he is sworn, shall excuse him from such service for any of the reasons prescribed in chapter 1, title 3, part 1 (sections 190-254) of the Code of Civil Procedure. [Amendment approved 1911; Stats. 1911, p. 433.] See, as to formation of grand jury, Code Civ. Proc., §§ 241 et seq. Legislation § 894. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 237); based on Crim. Prac. Act, § 181, as amended by Stats. 1854, Kerr ed. p. 161, Redding ed. p. 80, § 2, which read: "§ 181. A challenge may be taken to the panel of the grand jury, or to any individual grand juror in the cases hereinafter prescribed, by the people or the defendant." As enacted in 1872 the section read: "The people, or a person held to answer a charge for a public offense, may challenge the panel of a grand jury, or an individual juror." p. 433. 2. Amended by Stats. 1911, § 895. Allowing challenge. No challenge shall be made or allowed to the panel from which the grand jury is drawn, nor to an individual grand juror, unless when made by the court for want of qualification, as prescribed in the next preceding section. [Amendment approved 1911; Stats. 1911, p. 434.] Legislation § 895. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 238); based on Crim. Prac. Act, Stats. 1851, p. 232, § 182, which read: "§ 182. A challenge to the panel may be interposed for one or more of the following causes only: 1st. That the requisite number of ballots was not drawn from the jury-box of the county, as prescribed by law. 2d. The notice of the drawing of the grand jury was not given as prescribed by law. 3d. That the drawing was not had in the presence of the officers or officer designated by law." As enacted in 1872 the section read: "A challenge to the panel may be interposed for one or more of the following causes only: 1. That the requisite number of ballots was not drawn from the jury-box of the county; 2. That notice of the drawing of the grand jury was not given; 3. That the drawing was not had in the presence of the officers designated by law." 2. Amended by Stats. 1911, p. 434. § 896. Challenging grand juror. [Repealed 1911; Stats. 1911, p. 434.] Setting aside indictment or information: Post, § 995. Grounds of challenge to juror: See post, §§ 1072, 1073, 1074. Legislation § 896. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 239); based on Crim. Prac. Act, § 183, as amended by Stats. 1869-70, p. 786, § 1, the introductory paragraph and subds. 1, 2, 3, 4, and 5 reading same as the amendment of 1873-74 (see post), except that subd. 4 did not contain the article "a" before "prosecutor" (added in 1873-74), subd. 6 (which ended the section) reading, "Sixth. That he has formed or expressed an unqualified opinion or belief that the defendant is guilty or not guilty of the offense charged; but a hypothetical opinion, founded on hearsay or information supposed to be true, unaccompanied with malice or ill-will, shall not disqualify a juror or be a cause of challenge." When § 896 was enacted in 1872, another subdivision, numbered 7, was added, which read, "7. That a state of mind exists on his part in reference to the case, or to either party, which satisfies the court that he cannot act impartially and without prejudice to the substantial rights of the party challenging." The code commissioners say: "Subd. 7 is added to § 183 of the Criminal Practice Act of 1851, as amended. (Stats. 1869-70, p. 786.) It stands upon the same footing of reason and justice as, and covers cases that may not fall within, subd. 6." 2. Amended by Code Amdts. 1873-74, p. 436, to read: "A challenge to an individual grand juror may be interposed for one or more of the following causes only: First. That he is a minor. Second. That he is an alien. Third. That he is insane. Fourth. That he is a prosecutor upon a charge against the defendant. Fifth. That he is a witness on the part of the prosecution, and has been served with process or bound by an undertaking as such. Sixth. That a state of mind exists on his part in reference to the case, or to either |