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836. A peace-officer may make an arrest in obedience to a war rant delivered to him, or may, without a warrant, arrest a person:

1. For a public offense committed or attempted in his pres


2. When a person arrested has committed a felony, although not in his presence.

3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

4. On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.

5. At night, where there is reasonable cause to believe that he has committed a felony. 837. A private person may arrest another:

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

838. A magistrate may orally order a peace-officer or private person to arrest any one committing or attempting to commit a public offense in the presence of such magistrate.

839. Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.

..840. If the offense charged is a felony, the arrest may be made on any day, and at any time of the day or night. If it is a misdemeanor, the arrest cannot be made at night, unless upon the direction of the magistrate, indorsed upon the warrant, except when the offense is committed in the presence of the arresting officer. 1905—693.

841. The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or is pursued immediately after its commission, or after an escape.

842. If the person making the arrest is acting under the authority of a warrant, he must show the warrant, if required.

843. When the arrest is being made by an officer under the au

thority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all necessary means to effect the arrest.

844. To make an arrest, a private person, if the offense be a felony, and in all cases a peace-officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired. 1874–435.

845. Any person who has lawfully entered a house for the purpose of making an arrest, may break open the door or window thereof if detained therein, when necessary for the purpose of liberating himself, and any officer may do the same, when necessary for the purpose of liberating a person who, acting in his aid, lawfully entered for the purpose of making an arrest, and is detained therein.

846. Any person making an arrest may take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.

847. A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him to a peace-officer.

848. An officer making an arrest, in obedience to a warrant, must proceed with the person arrested as commanded by the warrant, or as provided by law.

849. When an arrest is made without a warrant by a peaceofficer or private person, the person arrested must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and an information, stating the charge against the person, must be laid before such magistrate.

850. A justice of the supreme court, or a judge of a superior court, may, by an indorsement under his hand upon a warrant of arrest, authorize the service thereof by telegraph, and thereafter a telegraphic copy of such warrant may be sent by telegraph to one or more peace-officers, and such copy is as effectual in the hands of any officer, and he must proceed in the same manner under it as though he held an original warrant issued by the magistrate making the indorsement. 1880–33.

851. Every officer causing telegraphic copies of warrants to be sent, must certify as correct, and file in the telegraph-office from which such copies are sent, a copy of the warrant and in, dorsement thereon, and must return the original with a statement of his action thereunder.


Retaking After an Escape or Rescue. 854. May be any time or 855. May break open door, place in state.

etc., admittance refused. 854. If a person arrested escapes or is rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him at any time and in any place within the state.

855. To retake the person escaping or rescued, the person pursuing may break open an outer or inner door or window of a dwelling-house, if, after notice of his intention, he is refused admittance.


Examination of the Case, and Discharge of the

Defendant or Holding him to Answer. 858. Magistrate to inform de- 871. Defendant, when and fendant of charge and

how discharged. right counsel.

872. Same, committed. 859. Time to send for coun- 873. Order of commitment. sel.

875. Order bail on commit860. Examination, when.

ment. 861. When completed. Post- 876. Commitment, proceedponement.

ings thereon. 862. Postponement, defend. 877. Form of commitment.

ant committed or bailed. 878. Undertaking of witness, 863. Form of commitment.

proceedings. 864. Depositions, supoenas, 879. Security, appearance of etc.

witness. 865. Examination, how con- 880. Infants and married ducted.

women. Security. 866. Examination defendants 881. Witnesses, when comwitnesses.

mitted. 867. Exclusion, what.

882. Witnesses, when condi. 868. Persons excluded.

tionally examined. 869. Testimony, taking and 883. Magistrates to return deauthenticating.

positions. 870. Deposition, transcript.

858. When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and, his right to the aid of counsel in every stage of the proceedings.

859. He must also allow the defendant a reasonable time to send for counsel, and postpone the examination for that purpose, and must, upon the request of the defendant, require a peace-officer to take a message to any counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty.

860. If the defendant requires the aid of counsel, the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the case: provided, however, that a defendant represented by counsel may when brought before the magistrate as provided in section eight hundred fifty-eight, or at any time subsequent thereto, waive his right to an examination before such magistrate, and thereupon it shall be the duty of the magistrate to make on order holding the defendant to answer, and it shall be the duty of the district attorney within fifteen days thereafter, to file in the superior court of the county in which the offense is triable the information; provided, further, however, that nothing contained herein shall prevent the district attorney nor the magistrate from requiring that an examination be held as provided in this chapter.

1923. 861. The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpone it. The posponement cannot be for more than two days at each time, nor more than six days in all, unless by consent or on motion of the defendant.

862. If a postponement is had, the magistrate must commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this code, as security for his appearance at the time to which the examination is postponed.

863. The commitment for examination is made by an indorsement, signed by the magistrate on the warrant of arrest, to the following effect: “The within-named A. B. having been brought before me under this warrant, is committed for examination to the sheriff of-" If the sheriff is not present, the defendant may be committed to the custody of a peace-officer.

864. At the examination, the magistrate must first read to the defendant the depositions of the witnesses examined on taking the information. He must also issue subpoenas, subscribed by him, for witnesses within the state, required either by the prosecution or the defense.

865. The witnesses must be examined in the presence of the defendant and may be cross-examined in his behalf.

He may

866. When the examination of witnesses on the part of the people is closed, any witnesses the defendant may produce must be sworn and examined.

867. While a witness is under examination, the magistrate may exclude all witnesses who have not been examined. also cause the witnesses to be kept separate, and to be prevented from conversing with each other until they are all examined.

868. The.magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney general, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in custody; provided, however, that when the prosecuting witness is a female she shall be entitled at all times to the attendance of a person of her own sex. 1915—772.

869. The testimony of each witness in cases of homicide must be reduced to writing, as a deposition, by the magistrate, or under his direction, and in other cases upon the demand of the prosecuting attorney, or the defendant, or his counsel. The magistrate before whom the examination is had may, in his discretion, order the testimony and proceedings to be taken down in shorthand in all examinations herein mentioned, and for that purpose he may appoint a shorthand reporter. The deposition or testimony of the witness must be authenticated in the following form:

First-It must state the name of the witness, his place of residence, and his business or profession.

Second—It must contain the questions put to the witness and his answers thereto, each answer being distinctly read to him as it is taken down, and being corrected or added to until it conforms to what he declares is the truth, except in cases where the testimony is taken down in shorthand, the answer or answers of the witness need not be read to him.

Third-If a question put be objected to on either side and overruled, or the witness declines answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated.

Fourth-The deposition must be signed by the witness, or if he refuses to sign it, his reason for refusing must be stated in writing, as he gives it, except in cases where the deposition is taken down in shorthand, it need not be signed by the witness.

Fifth—The reporter shall, within ten days after the close of such examination, if the defendant be held to answer the charge, transcribe into longhand writing, his said shorthand notes making an orignal and a copy thereof, and certify and file both said original and copy with the county clerk of the county, or city and

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