delivered the opinion of the court:
The question to be decided in this case is, whether, under the provisions of the Criminal Code, a county judge has the power, where the offense charged against a defendant is a felony, to examine the charge, and commit to jail, or hold to bail, the person charged with its commission.
In the case of Bowman vs. Commonwealth, 14 B. Mon., 390, it was decided, that a county judge was not authorized, by law, -to take a recognizance in a criminal case. That decision, however, was not made under the provisions of the Criminal Code, but under a previous statute, and does not apply to the present case.
By the 46th section of the Criminal Code, a magistrate of the county in which the public offense has been committed, is authorized to examine the charge, and to commit to jail, or hold to bail, the person charged with its commission.
Judges of the county courts, judges of city or police courts, mayors, chairmen of the trustees of towns, and justices of the peace, are all denominated magistrates in the Criminal Code—see section 23. Any one of them w'ould, therefore, be authorized by the 46th section, if the Code contained no other provision on the. subject, to examine the charge against a prisoner, even where the offense amounts to a felony, to take a recognizance and discharge him on bail, if the offense be bailable. But the 66f/i section provides, that if the magistrate before whom the defendant is brought for an examination of the charge against him, is a justice of the peace, and the offense charged is a felony, he shall proceed with such defendant to another justice of the county, who shall be associated with him, and the two shall compose the examining court, and perform the duties, and ex*29ercise the powers conferred by the Code upon an examining court. This, however, is an exception to the authority conferred upon a single magistrate by the 46th section, and is the only exception contained in the Code.
3. When a recognizance is taken, by one who is authorized to take it, substan t i a 11 y conforming to the 77 th sec.of the Grim. Code,from one who is legally in custody, charged with a public offense,it is valid.It follows, therefore, that a county judge, or a judge of a city or police court, may, by himself, hold an examining court in a criminal case, and commit to jail, or hold to bail, the person charged with the commission of the offense. Consequently, the objection made to the recognizance in this case, because it was taken by a county judge, cannot be sustained.
The undertaking of the bail was substantially that prescribed by the 77th section of the Criminal Code, and seems to be in every respect unobjectionable. But even if the recognizance were to some extent defective, it cannot, under the operation of the 80th section of the Code, be deemed to be invalid, if it be made to appear that the defendant was legally in custody, charged with a public offense, and that he was discharged therefrom by reason of the giving of the bond, and it can be ascertained from the bond, that the bail undertook the defendant should appear before a court for the trial thereof, all of which sufficiently appears in this case.
Wherefore, the judgment is reversed, and cause remanded, with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.