(dissenting):—The question before us is, whether the bail bond taken before the Justice of the Peace in this case below, is the only evidence that we may consider, in ascertaing the fact of whether there was a “ holding to bail ” in this case, within the meaning of the Constitution.
Is the bail bond itself all that is included in that term, or does the term include the legal proceeding of which the bail bond is only one and the concluding part ? Upon the interpretation of these three words this question depends.
The Constitution does not define what a “ holding to bail” means. We must therefore look for its interpretation to the laws of this State, governing the criminal jurisdiction of a Justice of the Peace or other committing magistrate.
*333A bail bond does not stand alone, as an independent and complete proceeding in itself. A Justice of the Peace may not of his own volition, or of his own caprice, without due process of law compel a person to execute a bail bond. He must proceed under the authority of his general criminal jurisdiction, described in Chapter 97 of the Revised Code, unless otherwise expressly provided. This includes the warrant for and arrest of the defendant, an examination or waiver thereof, then a commitment or a bail bond; of all of which necessary proceedings under Section 3 of of the said Chapter 97, the Justice of the Peace must keep a record. Therefore, “ holding to bail ” it would seem presupposes and includes all these connected and necessary features appropriate to each case.
Of this record, the bail bond is only a fragmentary part.
The Constitution evidently contemplates that there must be such a preliminary hearing before a Judge or a Justice of the Peace, including a commitment or bail bond, before the Attorney-General can file an information in any such case. If such preliminary hearing be had in fact, the constitutional prerequisite to the information is fully met.
If that preliminary hearing has been had, what may be the evidence of the offense charged ? Are we confined to the face of bail bond ? Is this the only, the conclusive and exclusive evidence of that offense, or may we examine the entire record of which the bail bond is only one related part ?
We are not interpreting a contract, but seeking the evidence of what is the offense charged below.
If we are confined to the face of the bail bond in ascertaining this fact, then the crime prescribed in the Constitution may have been committed, the constitutional preliminary hearing duly had and every safeguard provided by the Constitution thus thrown around the defendant; yet because the Justice of the Peace has not technically and clearly set out the specific offense in the bail *334bond, the criminal goes unwhipped of justice; although the general clause of the bail bond covers this offense in general terms.
This would be sacrificing substance to a matter of form.
Again; if the face of the bail bond be the only evidence admissible as to the offense on which the hearing was had below, gross injustice might result to the defendant. From ignorance, mistake or otherwise, a defendant might execute a bail bond for an offense entirely different from the one covered by the hearing below; yet in such a case, on the trial on the information in this Court, he would be precluded from showing from the record of the Justice of the Peace that it was not the offense for which the hearing was had; the face of the bail bond in such case being conclusive. It will be seen that such a rule would annul the constitutional protection of a preliminary hearing in that particular case.
It must be borne in mind that this is not a suit upon an instrument of writing, a written contract between the parties where both are necessarily confined to what is contained within the four corners of the paper itself, where the contract is clear and unambiguous ; but this is the mere ascertainment of the fact, of whether the defendant had the constitutional preliminary hearing and with what offense he was charged in that hearing; the bail bond being only one of the several parts of the record of that hearing, more than one of which several parts might and should disclose' the offense charged.
It is not a question of the contradiction, modification or alteration of a contract in writing by paroi evidence, and therefore does not come within the cases cited by the defendant; it is merely the ascertainment of the offense charged against the defendant from the whole record; every part of which is of equal force and validity under the well settled rules of evidence.
If the defendant in fact was arrested for the offense, had a hearing or waived a hearing, and executed a bail bond for this specific offense, and that fact appears on the entire record; although it is not fully disclosed on the face of the bail bond, in my judg*335ment we should consult the entire record, and not confine ourselves to a fragment thereof; otherwise we permit the failure of the Justice to set forth the particular offense on the face of the bail bond} to vitiate the entire proceeding and thus defeat the salutary provision of the Constitution as to this particular prosecution.
By such a construction, we make the conviction or acquittal of the defendant depend upon the skill of the Justice of the Peace (who may be unlearned in the law) in drawing legal papers; and not upon the main issue as to whether the defendant is guilty or innocent of the crime charged.
Adopt this rule in such cases; and we will find ourselves in many cases, upon subtle objections raised by gentlemen learned in the law, trying the capacity of the Justice of the Peace, and not the defendant’s guilt; this, too, on inspection of a fragment of the record of the Justice, while we deliberately shut our eyes to and exclude all the rest of the record which might remove all doubt. It would be no stretch of fancy to behold the defendant, looking on in somewhat merry amusement in this contest over words and phrases—this trial of the proficiency of the Justice, under which he goes free, although upon the merits he would readily be found guilty.
I cannot believe that the phrases “ examination and commitment ” on the one hand, or “ holding to bail ” on the other hand, as used in the Constitution, embodied as they are in a provision which is broadly remedial in its character, and was designed to meet and overcome a grave menace to our institutions, are to be interpreted by such a narrow ruling.
These terms mean not only the paper commitment and the paper bail bond, but also the entire record of the Justice of the Peace in each particular case, of which these respective papers are only the conclusion. In my judgment, the Court under the rules-of evidence and in the due administration of justice, may, and in cases of doubt is bound to examine the entire record as to any fact which is properly disclosed upon the face of that record, and that *336we should not suffer the arm of the law to be paralyzed by the examination of a part of the record when the whole record would carry out and not defeat the constitutional provision.
For these reasons I am compelled to dissent.
The defendant was discharged.