On the other hand, if it appears that an offense has been committed, and that there is probable cause to believe that the accused committed it, then, if the offense is bailable, the magistrate shall let him to bail, if he offers sufficient bail, to secure his attendance upon the proper court in the event of an indictment. But if the offense is not bailable, or the accused is unable to give bail, he shall be committed to jail by a proper writ of commitment. The writ of commitment is the authority by virtue of which the jailer receives and holds the accused as a prisoner.

On the hearing of such preliminary examination, in the absence of a statute, the accused is entitled to be heard by counsel. The witnesses are examined and cross-examined and arguments may be had the same as if the cause was being heard before the court and jury on final trial.