entry was "wilful and unlawful" and against "the peace and dignity of the state," even after verdict. Smith, 103-410.

STATE MAY BE MADE PLAINTIFF BY AMENDMENT.-A warrant for failure to work the road issued by a justice may be amended in the superior court by inserting the state as plaintiff instead of the overseer. Cauble, 70-62. NO REVIEW.-The exercise of the power to amend a complaint by a justice is not reviewable. Taylor, 118-1262.

MAGISTRATE FROM WHOM REMOVED MAY AMEND.-It is not necessary that the amendment should have the concurrence of the magistrate who heard the cause. Norman, 110-484.

LIMIT OF POWER.-The power to amend is unrestricted save only that the nature of the offence must not be changed. Norman, 110-484.

A warrant can not be amended by striking out the offence charged and inserting a new and different offence. Taylor, 118-1262.

AFFIDAVIT AND WARRANT ONE.-The affidavit and warrant are one in contemplation of law if one is referred to by the other. Davis, 111–729.

AFFIDAVIT NOT RE-SWORN.It is not necessary after amendment that the affidavit be re-sworn. Norman, 110-484.

There is no necessity, after the affidavit is amended, that it should be verified in its amended form. Davis, 111-729.

NOT RE-SERVED.-Where the warrant is amended it is not necessary that it be again served. Norman, 110-484.

Sec. 339 (1133). Duty of magistrate on complaint being made to him of the commission of a crime. 1868-'9, c. 178, sub chap. 3, s. 2.

Whenever complaint shall be made to any such magistrate, that a criminal offence has been committed within this state, or without this state and within the United States, and that a person charged therewith is in this state, it shall be the duty of such magistrate to examine on oath the complainant and any witnesses who may be produced by him.

Sec. 340 (1134). Duty of magistrate to issue his warrant for the arrest of the accused. 1868-'9, c. 178, sub chap. 3, s. 3.

If it shall appear from such examination that any criminal offence has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal, reciting the accusation, and commanding the officer to whom it shall be directed, forthwith to take the person accused of having committed such offence, and to bring him before a magistrate, to be dealt with according to law.

Sec. 341 (1135). Where warrant to run. 1868-'9, c. 178, sub chap. 3, s. 4.

Warrants issued by any justice of the supreme court or by any judge of the superior court, or of a criminal court, may be executed in any part of this state; warrants issued by a justice of the peace, or by the chief officer of any city or incorporated town, may be executed in any part of the county of such justice,

or in which such city or town is situated, and on any river, bay or sound forming the boundary between that and some other county, and not elsewhere, unless indorsed as prescribed in the section following.

Sec. 342 (1136). How warrants may be indorsed. 1868-'9, c. 178, sub chap. 3, s. 5.

If the person against whom any warrant granted by any such justice of the peace or chief officer of a city or town shall be issued, shall escape, or be in any other county out of the jurisdiction of such justice or chief officer, it shall be the duty of any justice of the peace, or any other magistrate named in this chapter within the county where such offender shall be, or shall be suspected to be, upon proof of the handwriting of the magistrate issuing the warrant, to endorse his name on the same, and thereupon the person, or officer to whom the warrant was directed, or any officer of the county in which it was indorsed, to whom it may be delivcred, may arrest the offender in that county.

Sec. 343 (1137). Magistrate not liable to indictment or action for improperly indorsing warrant. 1868-'9, c. 178, sub chap. 3, s. 6.

No magistrate shall be liable to any indictment, action for trespass or other action for having indorsed any warrant pursuant to the provisions of the last section, although it should afterwards appear that such warrant was illegally or improperly issued.

Sec. 344 (1138). Person arrested to be taken before some magistrate of the county where offence was committed. 1868-'9, c. 178, sub chap. 3. s. 7.

It shall be the duty of the officer making the arrest to take the person charged with the offence before some magistrate of the county in which the offence is charged to have been committed, or before any judge of the supreme, superior or criminal

court.

Sec. 345 (1133). Magistrate shall take bail, if the offence be not a capital one. 1868-'9, c. 178, sub chap. 3, s. 8. 1871-'2, c. 37, s. 1.

If the offence charged in the warrant be not punishable with death, such magistrate may take from the person so arrested a recognizance with sufficient sureties for his appearance at the next term of the court having jurisdiction, to be held in the county where the offence shall be alleged to have been committed. Sec. 346 (1140). Duty of magistrate granting bail. 1868-'9, s. 178, sub chap. 3, s. 9.

Such magistrate shall certify on the warrant the fact of his having let the defendant to bail, and shall deliver the same, to

gether with the recognizance taken by him, to the officer or other person having charge of the prisoner, who shall deliver the same without unnecessary delay to the clerk of the court in which such prisoner shall have been recognized to appear.

Sec. 347 (1141). If bail is not allowed, or is not given, the accused to be taken before a magistrate of the county where the warrant was issued. 1868-'9, c. 178, sub chap. 3, s. 10.

If such magistrate refuse to bail the person so arrested, or if such person fail to give bail as above provided, the officer or person having him in charge shall take him before a magistrate of the county in which the warrant was originally issued as hereinafter provided.

Sec. 348 (1142). In capital cases the prisoner must be brought before a magistrate of the county where the warrant was issued or before some judge of the supreme or superior court. 1868-'9, c. 178, sub chap. 3, s. 11.

If the offence charged in the warrant be punishable with death, the officer making the arrest shall convey the prisoner to the county where the warrant was originally issued, before some magistrate thereof, or before a judge of the supreme or superior

court.

Sec. 349 (1143). Before what magistrate warrant to be returnable. 1868-'9, c. 178, sub chap. 3, s. 12.

Persons arrested under any warrant issued for any offence where no provision is otherwise made, shall be brought before the magistrate who issued the warrant; or, if he be absent, or from any cause unable to try the case, before the nearest magistrate in the same county; and the warrant, by virtue of which the arrest shall have been made, with a proper return indorsed thereon and signed by the officer or person making the arrest, shall be delivced to such magistrate.

Sec. 350 (1144). Duty of the examining magistrate. 1868-'9, c. 178, sub chap. 3, s. 13.

The magistrate, before whom any such person shall be brought, shall proceed, as soon as may be, to examine the complainant, and the witnesses produced in support of the prosecution, on oath, in the presence of the prisoner, in regard to the offence charged, and in regard to any other matters connected with such charge, which such magistrate may deem pertinent.

EVIDENCE OF OFFICIAL CAPACITY OF THE JUSTICE.-Where the record shows that, upon preliminary examination, the prisoner was brought before A B, an acting justice of the peace, charged with an offence, it sufficiently appears that the justice was acting in his official capacity in conducting the inquiry. Bridgers, 87-562.

Sec. 351 (1145). The examination; prisoner to be allowed time to advise with counsel and to cross-examine witness against him. 1868-'9, c. 178, sub chap. 3, s. 14.

The magistrate shall then proceed to examine the prisoner in relation to the offence charged. Such examination shall not be on oath; and before it is commenced, the prisoner shall be informed of the charge made against him, and shall be allowed a reasonable time to send for and advise with counsel. If desired by the person arrested, his counsel shall be present during the examination of the complainant and the witnesses on the part of the prosecution, and during the examination of the prisoner; and the prisoner or his counsel shall be allowed to cross-examine the complainant and the witnesses for the prosecution.

NAME OF PRISONER.-Evidence of the name of a prisoner as given by him when brought before the examining magistrate is admissible, though it does not appear whether the examinaton was reduced to writing or not. Johnson, 67-55.

Sec. 352 (1146). Prisoner shall be informed that he may refuse to answer any questions. 1868-'9, c. 178, sub chap. 3, s. 15.

At the commencement of the examination, the prisoner shall be informed by the magistrate that he is at liberty to refuse to answer any question that may be put to him, and that his refusal to answer shall not be used to his prejudice in any stage of the proceedings.

It is not necessary that the exact language of the statute should be used in giving the caution. The fact that defendant was "duly warned and told that he need not say anything unless he wanted to, and it would not be used against him if he did not testify, and it was dangerous to go on the stand," etc., is sufficient. DeGraff, 113-688.

It is not necessary that the committing magistrate at the commencement of the examination should use the very words of the statute, but it is sufficient if there be a substantial compliance and that the prisoner be informed in plain language of his rights. Rogers, 112-874.

Where a defendant is called by his counsel and sworn and examined as a witness he will be deemed to be exercising his right to testify under section 1353 of The Code, and he can not insist afterwards that he was not cautioned. Hawkins, 115-712.

Sec. 353 (1147). Answer of prisoner shall be reduced to writing. 1868-'9, c. 178, sub chap. 3, s. 16.

The answer of the prisoner to the several interrogatories shall be reduced to writing by the magistrate, or under his direction; they shall be read to the prisoner who may correct or add to them; and when made conformable to what he declares is the truth, shall be certified and signed by the magistrate.

SEAL. It is not necessary that the examination should be certified under the private or official seal of the committing magistrate. Pressley, 90

Sec. 354 (1148). Prisoner may examine witnesses and have the assistance of counsel. 1868-'9, c. 178, sub chap. 3, s. 17.

After the examination of the prisoner is complete, his witnesses, if he have any, shall be sworn and examined, and he may have the assistance of counsel in such examination.

Sec. 355 (1149). The prisoner shall not be examined in the presence of witnesses; witnesses may be examined separately. 1868-'9, c. 178, sub chap. 3, s. 18.

The witnesses produced on the part either of the prisoner or of the prosecution shall not be present at the examination of the prisoner; and while any witness is under examination the magistrate may exclude from the place in which such examination is had all witnesses who have not been examined, and may cause the witnesses to be kept separate and prevented from conversing with each other until they shall have been examined.

Sec. 356 (1150). The testimony of witnesses to be reduced to writing. 1868-'9, c. 178, sub chap. 3, s. 19.

The evidence given by the several witnesses examined shall be reduced to writing by the magistrate or under his direction, and shall be signed by the witnesses respectively.

EXACT WORDS NOT REQUIRED.-The justice is not required to write down the very words of the witness, but may give the substance. Bridgers, 87662.

WHEN EXAMINATION COMPETENT FOR DEFENDANT.-The written testimony of a witness taken before a committing magistrate is competent for the defendant if the witness is dead, or too ill to be present, or insane, or has removed from the state, at the instigation or with the connivance of the prosecutor. King, 86--603.

NOT COMPETENT.-Such evidence is not competent when the witness merely fails to respond to a subpoena, and is simply proved to have "run away," and there is no proof that any effort has been made to secure his presence. King, 86-603.

PAROL EVIDENCE COMPETENT, THOUGH EXAMINATION REDUCED TO WRITING. -A magistrate may state what a witness swore before him in regard to the crime charged, though he afterwards reduced the statement to writing. Such statement could only be referred to to refresh his memory. Adair, 66-298.

HOW WRITTEN EXAMINATION USED.-The testimony of a witness taken down by a magistrate can not be used in the superior court as evidence in chief, but may be used to show contradictory statements made by him. McLeod, 8 (1 Hawks), 344.

Where the purpose is to contradict a witness as to a material matter, the written examination of such witness, taken by a justice on the preliminary trial, is competent, and such witness need not be asked what he swore on the preliminary examination before offering such written evidence of contradictory statements. Jordan, 110—491.

The written testimony of a witness, whether signed or not, is competent to contradict such witness who testified to the contrary in the superior