which any person shall be convicted of a criminal offense, not punishable with death or imprisonment in the state prison, shall have power, in addition to such sentence as may be prescribed or author [ ized by law, to require such person to give security to keep * 513] the peace, or to be of good behavior, or both, for *any term not exceeding two years, or to stand committed until such security be given. But this provision does not extend to convictions for writing or publishing any libel; nor shall any such security be hereafter required by any court, upon any complaint, prosecution, or conviction, for any such writing or publishing. No recognizance given under this section of the statute is to be deemed to be broken, unless the principal therein be convicted of some offense amounting, in judgment of law, to a breach of recognizance. (k) The same proceedings for the collection of such recognizance, when forfeited, shall be had as are prescribed in the first title of this chapter, in relation to recognizances to keep the peace. (7) But where surety of the peace is directed to be given, as a part of the penalty for the commission of an offense it is said it must be understood rather as a caution against the repetition of the offense, than any immediate pain or punishment in itself. (m) All persons whatsoever, being of sane memory, whether natural born citizens or aliens, have a right to demand surety of peace. Wives may demand it against their husbands, and husbands against their wives. (n) "In the latter case" (as Dr. Burn quaintly says), "Master Crompton observeth, that if the wife can not find sureties, she shall be committed, and so a man may be rid of a shrew." (0) Where a woman exhibits articles of the peace against a man whom she calls her husband, and he disputes the fact of the marriage, the magistrate should order the recognizance to be worded so as not to admit the fact. (p) Married women, and infants under age, ought to find security by their friends only, and not to be bound themselves; for they are incapable of engaging themselves to answer any debt. (9) The recognizance may, as we have seen, be discharged by the court of sessions if the complainant does not appear. So it may be discharged by the court upon the death of the principal party bound (k) 2 R. S., 737, §§ 1, 2. 3 id., 7th ed., 2572. (1) Id., § 3. (m) 4 Black. Com., 253. 2 Deacon's Dig. Cr. L., 1271. (n) 1 Hump. P. C., ch. 60, § 2, 4. 2 Str., 1231. (0) Burn., J. "Surety of the P." II. Cromp., 118. (p) 2 Str., 1231. (g) 4 Black. Com., 254. thereby, if not before forfeited, or upon the death of the complain ant. () (2) Surety for the good behavior, is of near affinity to surety for the peace; but it includes the latter kind of surety and something more; for he that is bound to the good behavior is therein also bound to keep the peace. (s) The duty of a justice in requiring surety for the good behavior from disorderly persons, will be stated hereafter, in the chapter relative to " Summary convictions." (r) Id., ib. Dalt., ch. 18, 274. 1 Hawk., ch. 60, (8) Dalt., ch. 122, p. 286. § 17. (2) The act of 1866 (ch. 95), provides that whenever any magistrate, having criminal jurisdiction, shall take any deposition, affidavit or complaint in writing, upon which he shall issue any criminal warrant, search warrant, or other criminal process, he shall file and preserve the same, and on the demand of any person affected by the said warrant, etc., he shall exhibit the said deposition, affidavit or complaint to such person for his perusal; and such person, by himself or by another, may take copy thereof. (3 R. S., 7th ed., 2542.) Recognizance to keep the peace, or for good behavior in the city of New York.]—The "New York city consolidation act of 1882, provides that whenever any person shall have been recognized to appear at the court of special sessions, and shall have appeared as bound by such recognizance, and said court shall have heard the matter the said court may, in its discretion and if the circumstances of the case seem to demand it, determine and require that the principal in such recognizance do enter into a further recognizance to keep the peace, or to be of good behavior, or both,. toward the people of the state of New York, for a period not to exceed one year; and in default thereof commit said principal to prison till he be discharged therefrom according to law. The provisions of this section shall also apply, as far as practicable, to any person who shall come before said court, with or without process, for any misdemeanor or misconduct whatever. (Laws of 1882, vol. 2, § 1478.) Whenever a recognizance to keep the peace, or to be of good behavior shall be ordered by any magistrate or court in said city and county, the said magistrate or court may require the person so ordered to enter into such recognizance, to pay one dollar, as the costs of such proceeding, and in default of payment thereof, may commit the person so ordered to prison, until the same be paid, for a period not to exceed one day. (Id., § 1471.) Every recognizance to keep the peace, or to be of good behavior, or for both (except such recognizances for good behavior as shall be taken on conviction of disorderly persons, and such recognizances to keep the peace as shall be made returnable to the court of general sessions of the peace), that shall be entered into in the city and county of New York, shall be forthwith filed in the office of the clerk of the court of special sessions. And whenever it shall appear that such recognizance has been violated, it shall be the duty of the district attorney in said county to move before the said court of special sessions, for the forfeiture of the recognizance. The said court of special sessions may, upon proof of the violation of any such recognizance, direct the same to be forfeited, by an order entered in their minutes; and the clerk of the court shall return the said recognizance, when forfeited, with a certified copy of the minutes of forfeiture, to the said district attorney, that it may be prosecuted. Any act or behavior on the part of the principal in such recognizance, which would have been cause for an order to find surety for good behavior, or to keep the peace, in the first instance, shall be deemed a breach of the condition of such recognizance. (Id., § 1472.) Whenever any recognizance to keep the peace, or to be of good behavior, shall be discharged before the expiration of the period for which it shall have been taken, the court or magistrate discharging may require, as a condition of such discharge, that a fine not to exceed the amount a police justice in said city is authorized to inflict for disorderly conduct tending to a breach of the peace, shall be paid for the use of the city of New York. (Id., § 1473.) OF THE ARREST AND EXAMINATION OF OFFENDERS; COMMIT. TING THEM FOR TRIAL; AND LETTING THEM TO BAIL. THE various subjects embraced in this chapter will be treated of in the following order: 1. COMPLAINTS. 2. WARRANTS. 3. ARRESTS; AND THE EXECUTION OF PROCESS. 4. EXAMINATION OF OFFENDERS. 5. COMMITTING OFFENDERS FOR TRIAL. 6. LETTING OFFENDERS TO BAIL. 1. Complaints. Where a statute gives a justice jurisdiction over an offense, it impliedly gives him power to apprehend any person charged with such offense. (a) The initiatory step to be taken, in order to procure the arrest and examination of persons charged with having committed offenses, is to make a complaint to any officer authorized by law to receive it, showing that a criminal offense has been committed. (1) The following points respecting complaints, are to be noticed: 1st. The persons to whom complaints may be made; 2d. The complainant; 3d. Who may be complained of; 4th. Form of the complaint; 5th. The duty of the magistrate. 1st. Of the persons to whom complaints may be made.] All the topics included in this chapter were formerly regulated by the Revised Statutes, and other statutes subsequently enacted. But the entire title of the Revised Statutes relating to the "Arrest and examination of offenders; their commitment for trial; and letting them to bail," was superseded by the Code of Criminal Procedure; (a) 1 Chit. Cr. L., 34. (1) In the Code of Criminal Procedure, the word information is used, instead of complaint. An information is defined to be the allegation made to a magistrate, that a person has been guilty of some designated crime. (§ 145.) which, together with some statutes still in force, contains the existing rules on the various subjects above mentioned. (2) *2d. Of the complainant.] When a person competent [515] to enter a complaint knows that another has committed an offense, he should see that measures are taken to bring the offender to justice. In point of morals, this duty is quite plain; and it is especially so with regard to those more aggravated crimes which strike at the foundations of public tranquillity, or endanger the lives and property of individuals. No one can be said to have fully discharged his obligations to society who, under such circumstances, should remain silent and inactive and allow the culprit to escape. England this duty is expressly enforced by statute; and the neglect of it is, in many cases, rendered criminal, and visited with exemplary punishment. It is stated, moreover, to be an offense at common law for one who knows that felony or treason has been committed, will fully to omit informing against the offender. (d) In We have no statutory provisions on this subject, however, nor are we aware that an indictment merely for not complaining has ever been sustained upon common law principles, either in this state or in this country. (e) Our law, however, as well as that of England, encourages the performance of this duty by insuring to the complainant all due protection in the discharge of it. It would indeed be a great hindrance to public justice were he liable to an action whenever he was mistaken in the object of his suspicions; and, accordingly, it is the settled doctrine that a person can not be sued for complaining of or indicting a party, unless his proceedings were both actuated by malice and entirely destitute of any probable foundation. (ƒ) And the rule is quite as strict if not more so, in shielding him from an action of slander for the charges made in the form of complaints.(g) (d) See 2 Russ. on Cr., 43. 3 Inst., 138, 140. 1 Haie, 431, 448, 553, 371, 375. Bract., 118. Roscoe's Cr. Ev., 311. 1 Hawk. P. C., ch. 56, § 2, ann. 4 Black. Com, 121. (e) See 4 Black. Com., 120, n. 1, Am. ed., 1836. (ƒ) 2 Stark. Ev., 492, 5th Am. ed. 2 Brown's Rep., App'x, 69. Id., 42. 3 Wash. C. C. Rep., (2) To whom complaints are to be made.] Complaints (or informations) are now to be made to the magistrates mentioned in section 147 of the Code of Criminal Procedure. (See ante, p. 509, note 1.) Magistrate, defined.]-A magistrate is an officer, having power to issue a warrant for the arrest of a person charged with a crime. (Code Cr. Pro., § 146.) [65] 1025 But where the law is made the engine of oppression, or the occasion is used by the prosecutor merely to gratify his malice, and the complaint is entered without probable cause, the party injured has his redress by action. (h) Probable cause is a reasonable suspicion, supported by circumstances sufficient to warrant a cautious man in the belief that the person accused is guilty of the offense charged. And such cause will afford a defense to the action for malicious prosecution, however innocent the plaintiff may be. But the facts inducing the suspicion must be known to the defendant, or he must have had information of them, at the time of commencing [*516] the prosecution, or they will not avail * him. (¿) An action for malicious prosecution can not be maintained. without showing the absence of probable cause, in addition to proof of express malice. (k) Where several conspire in order to institute a groundless and malicious prosecution, they may be indicted and punished. (7) In regard to causes tried before a court of special sessions, there is a still further check upon groundless complaints. If the defendant is acquitted, and the court certify, in their minutes, that the complaint was willful and malicious, and without probable cause, the complainant must pay all the costs that shall have accrued to the court or constable, or give security by a bond to the people conditioned that he will pay them in thirty days. If he neglects to pay them or give security, judgment may be entered for the amount, by the court, and the complainant committed to jail as upon a justice's execution in a civil cause, and for the like period, until he shall satisfy the judgment, with the costs of the commitment, or until he shall be discharged by due course of law. (m) In addition to the above, the act of 1845 (ch. 180, § 16), to reduce the number of town officers, &c., provides that whenever a magistrate, or a jury before whom a criminal cause shall be tried, under the provisions of that act, shall be satisfied from the evidence and proceedings had before them, that the person or persons charged and tried, were complained of and proceeded against without probable cause, and with malicious intent to injure ́ or harass, they may render a verdict for costs against the complainant; whereupon the magistrate shall enter judgment for the amount of such costs, upon which an execution may issue against the property (h) 1 Chit. Cr. L., 10. 2 Stark. Ev 492, et seq. 2 John. R., 203. 4 Barn. & Cr., 247. 12 Pick., 163, 164, 165. (i) 2 Denio, 617. (k) Ibid. (2) 2 R. S, 691, § 8. 3 id., 7th ed., 2516. |