city and county of San Francisco, on warrant issued by justice of peace of county of Sacramento on charge of felony, in order to procure bail under constitution and stat utes, should be taken before magistrate by whom warrant was issued, or some other magistrate of county of Sacramento.-Ex parte Hung Sin, 54 Cal. 102, 103. § 822. DEFENDANT ARRESTED FOR MISDEMEANOR IN ANOTHER COUNTY, TO BE ADMITTED TO BAIL. If the offense charged is a misdemeanor, and the defendant is arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit the defendant to bail, and take bail from him accordingly. History: Enacted February 14, 1872, founded on § 115 Criminal 1. Arrest on charge of misdemeanor, on warrant sworn out before justice in another county, and failure, on demand, to take prisoner before justice or judge in county of arrest, for purposes of bail, but through trick, fraud, and force hustling person arrested out of county where arrest was made, constitutes the offense of kidnaping.-See, ante, §§ 207, 784 and notes. § 823. PROCEEDINGS ON TAKING BAIL FROM THE DEFENDANT IN SUCH CASES. On taking the bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and must, without delay, deliver the warrant and undertaking to the clerk of the court at which the defendant is required to appear. History: Enacted February 14, 1872, re-enactment of § 116 Criminal Practice Act 1851, Stats. 1851, p. 224. § 824. WHEN BAIL IS NOT GIVEN. WHEN MAGISTRATE WHO ISSUED WARRANT CAN NOT ACT. If, on the admission of the defendant to bail, the bail is not forthwith given, the officer must take the defendant before the magistrate who issued the warrant, or, in case of his absence or inability to act, before the nearest or most accessible magistrate in the same county, and must at the same time deliver to the magistrate the warrant, with his return thereon indorsed and subscribed by him. History: Enacted February 14, 1872, founded on §§ 117, 118 Criminal Practice Act 1851, Stats. 1851, pp. 224, 225. 1. Felony being charged, magistrate issuing warrant alone can admit to bail.Ex parte Hung Sin, 54 Cal. 102. As to warrant by magistrate directing officer to bring person arrested before him, see, ante, § 814 and note. § 825. DEFENDANT MUST BE TAKEN BEFORE MAGISTRATE WITHOUT DELAY. [RIGHT OF ATTORNEY TO VISIT PRISONER.] The defendant must in all cases be taken before the magistrate without unnecessary delay, and after such arrest, any attorney at law entitled to practice in the courts of record of California, may at the request of the prisoner or any relative of such prisoner, visit the person so arrested. Any officer having charge of the prisoner so arrested who wilfully refuses or neglects to allow such attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of five hundred dollars, to be recovered by action in any court of competent jurisdiction. History: Enacted February 14, 1872; re-enactment of § 119 Criminal Practice Act 1851, Stats. 1851, p. 225; amended April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 30; March 22, 1907, Stats. and Amdts. 1907, p. 888, Kerr's Stats. and Amdts. 1906-7, p. 540. In effect immediately. 1. Speedy trial-Right of defendant to. -General provisions of statute, that prisoner is not to be held indefinitely, are designed to secure to him speedy trial, and this right is absolute, except some good cause be shown which may be supposed to take case out of operation of general rule. -Ex parte Bull, 42 Cal. 196, 199. As to duty of officer making arrest to take person arrested before magistrate who issued warrant, or some other magistrate in same county, see, ante, § 821 and note. As to right of defendant to send for counsel, and have examination postponed for that purpose, see, post, § 859 and note. § 826. PROCEEDINGS WHERE DEFENDANT IS TAKEN BEFORE ANOTHER MAGISTRATE. If the defendant is brought before a magistrate other than the one who issued the warrant, the depositions on which the warrant was granted must be sent to that magistrate, or, if they can not be procured, the prosecutor and his witnesses must be summoned to give their testimony anew. History: Enacted February 14, 1872, founded on § 120 Criminal 3. case. Same-Magistrate who issues warrant does not alone have power to examine the Another magistrate before whom prisoner is brought, to whom the warrant, with its prior indorsements, is delivered, has same jurisdiction to examine the case and hold defendant to answer.-Ex parte Moan, 65 Cal. 216, 217, 3 Pac. 644. 4. Same-Rule under Criminal Practice Act, section 107, see Ex parte Branigan, 19 Cal. 133, 134. 5. Rights of prisoners before another magistrate.-Only right which prisoner can exact upon being taken before another magistrate, in case he insists upon an exthe affidavits amination, is, that upon which warrant for his arrest was issued shall be transmitted to the new magistrate, or, if they can not be procured, that his witnesses shall be summoned to give their testimony anew.-Ex parte Branigan, 19 Cal. 133, 135. § 827. PROCEEDINGS FOR OFFENSES TRIABLE IN ANOTHER COUNTY. When an information is laid before a magistrate of the commission of a public offense triable in another county of the state, but showing that the defendant is in the county where the information is laid, the same proceedings must be had as prescribed in this chapter, except that the warrant must require the defendant to be taken before the nearest or most accessible magistrate of the county in which the offense is triable, and the depositions of the informant or prosecutor, and of the witnesses who may have been produced, must be delivered by the magistrate to the officer to whom the warrant is delivered. History: Enacted February 14, 1872, re-enactment of § 121 Criminal warrant, or some other magistrate in same § 828. DUTY OF OFFICER. The officer who executes the warrant must take the defendant before the nearest or most accessible magistrate of the county in which the offense is triable, and must deliver to him the depositions and the warrant, with his return indorsed thereon, and the magistrate must then proceed in the same manner as upon a warrant issued by himself. History: Enacted February 14, 1872, re-enactment of § 122 Criminal Practice Act 1851, Stats. 1851, p. 225. § 829. ADMISSION TO BAIL. If the offense charged in the warrant issued pursuant to section eight hundred and twenty-seven is a misdemeanor, the officer must, upon being required by the defendant, take him before a magistrate of the county in which the warrant was issued, who must admit the defendant to bail, and immediately transmit the warrant, depositions, and undertaking, to the clerk of the court in which the defendant is required to appear. History: Enacted February 14, 1872, re-enactment of § 123 Criminal 1. Person released on bail is still in the custody of the law, effect of giving bail being merely to constitute prisoner's bail his jailers, in place of sheriff.-Ex parte Jones, 41 Cal. 209, 210. As to admission to bail in general, see, post, §§ 1268 et seq. and notes. § 834. ARREST DEFINED. BY WHOM MADE. An arrest is taking a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person. History: Enacted February 14, 1872, founded on § 124 Criminal As to arrest in general, see notes, 19 Am. Dec. 485-493; 61 Am. Dec. 151-164. As to arrest by peace-officer, see, post, § 836 and note. As to arrest by private persons, see, post, § 837 and note. As to arrest by telegraph, see, post, §§ 850, 851. As to alterations in warrant of arrest made after leaving hands of magistrate, see par. 4, this note. As to false imprisonment, see, ante, §§ 236, 237 and notes. As to homicide committed upon person resisting arrest, see note, 8 L. R. A. 535. As to liability for arresting wrong person, see note, 44 Am. Dec. 291. As to privilege of legislator as to exemption from arrest, see note, 16 Am. Dec. 784. As to proceedings against fugitives from justice, see, post, §§ 1547 et seq. As to rearrest or retaking of escaped or rescued persons, see, post, §§ 854 et seq. and notes. As to resisting arrest, see, ante, § 69 and note pars. 1-3. As to right of policeman to make arrests in general, see note, 84 Am. St. Rep. 679. As to right to resist unlawful arrest, see note, 69 Am. St. Rep. 849. As to right of officer to break doors or windows of dwelling-house in retaking persons escaped or rescued, see, post, § 855 and note. As to time when arrest may be made, see, post, § 840 and note. As to warrant of arrest issued by justice of peace, or police judge, see, post, § 1427 and note. As to wrongful arrest, liability for, etc., see note, 19 Am. Dec. 490-493. 1. Arrest What constitutes. Actual touching of body, or actual force, is not necessary to constitute an arrest and imprisonment. It is sufficient if party be within power of officer and submits to arrest.-Bissell v. Gold, 1 Wend. (N. Y.) 210, 19 Am. Dec. 480. 2. An officer effects arrest of person whom he is authorized to arrest by laying his hand on him for purposes of arresting him, though he may not succeed in stopping and holding him.-Whithead v. Keyes, 85 Mass. (3 Allen) 495, 81 Am. Dec. 672. 3. Arrest without a warrant-Lawful and proper when made while defendant was loudly cursing and swearing within hearing of women, after having been several times warned by marshal to desist.-People v. Nihell, 144 Cal. 200, 202, 77 Pac. 916. 4. Alteration of warrant of arrest.-No alteration of warrant of arrest can be rightfully made after it has finally left hands of magistrate who issued it. He decides upon his official responsibility whether a warrant shall issue, and against whom it shall issue. Altered without his authority, it is no longer his warrant.Haskins v. Young, 2 Dev. & B. L. (N. C.) 527, 31 Am. Dec. 426. 5. Arrest of deserter from United States army. Under the laws and army regulations, peace-officer or private citizen has no authority as such, without order or direction of military officer, to arrest or detain deserter from army of United States. Whether it is expedient for public welfare and good of army that such authority should be conferred is matter for determination of congress.-Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458, 6 Sup. Ct. Rep. 148. 6. Same-Sections of Penal Code construed.-Sections 836, 837, and 849 of Penal Code of California, affirming authority of police-officer without warrant, or private person, to make an arrest, "for a public offense committed or attempted in his presence," as well as in cases of felony, and requiring person arrested to be taken forthwith before magistrate, have in view civil offense only, and do not include offenses against the United States, certainly not those triable and punishable by courtmartial.-Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458, 6 Sup. Ct. Rep. 148. 7. Arrest. of federal officer by state authorities. It is within discretion of federal courts to at once take cognizance of cases involving an arrest of federal officer in performance of his duty, and such officer may be taken from control and custody of state court by United States court, and, on habeas corpus proceedings, discharged.-In re Turner, 119 Fed. 231, 235. See Cunning ham v. Neagle, 135 U. S. 1, 34 L. ed. 55, sub nom. In re Neagle, 10 Sup. Ct. Rep. 658; Ohio v. Thomas, 173 U. S. 276, 43 L. ed. 699, 19 Sup. Ct. Rep. 453. 8. Arrest of mail-carrier.-Civil process can furnish no justification for arrest of carrier of mail while thus engaged, but rule is different when process is issued upon charge of felony. No officer or employee of United States is placed, by his position or the services he is called to perform, above responsibility to legal tribunals of country, and ordinary processes for his arrest and detention when accused of felony, in forms prescribed by constitution and the laws.-United States v. Kirby, 74 U. S. (7 Wall.) 482, 19 L. ed. 278. 9. Extradition of a person-Brought by force to state from which extradited.— Where defendant was forcibly captured in Peru, and brought to San Francisco against his will, and without due process of extradition, and was subsequently delivered up by authorities of California, upon requisition from governor of state of Illinois, and upon such requisition taken to state of Illinois and there arrested upon charge of larceny; held, that jurisdiction of court that tried him in Illinois was not affected by regularity or irregularity of his surrender by California authorities, or by right of last-named state to release defendant upon such requisition.-Ker v. People, 110 Ill. 627, 51 Am. Rep. 706. 10. Same-Arrest in this state of fugitive from another state. He is entitled to his discharge, if his examination is not brought on before magistrate within six days. Ex parte Rosenblat, 51 Cal. 285, 287, 2 Am. Cr. Rep. 215. 11. Same Same rule is applicable to proceeding under requisition from governor of another state as applies when question is between criminal proceeding mentioned in this state and civil action. In such case, interest of private suitor, who has caused defendant to be arrested, must yield to paramount interest of people of state.-Ex parte Rosenblat, 51 Cal. 285, 288, 2 Am. Cr. Rep. 215. 12. Same-Defendant can have no just ground of complaint that he was brought within jurisdiction of state without "due process of law," where state prosecuting him was not party to any violation of treaty or other public law, in bringing defendant within jurisdiction of state.-Ker one 14. Same - Prisoners arrested in state and brought to another by officers, against their will, by parties acting without authority, either under requisition from governor, or otherwise, where they were rearrested, turned over to civil authorities, and proper steps taken for their detention and trial; held, that liability of parties arresting them without legal warrant, for false imprisonment or otherwise, and their violation of penal statutes of former state, may be ever so clear, and yet prisoners not be entitled to their discharge, offense being committed in latter state and punishable there, and indictment found without reference to arrest.-State v. Ross, 21 Iowa 467. See State v. Day, 58 Iowa 678, 12 N. W. 733; Dows' Case, 18 Pa. St. 37. 15. Photograph, description, etc., of prisoner. Officer, in his discretion, should he deem it necessary to safe-keeping of prisoner, and to prevent his escape, or to enable him to more readily retake the prisoner if he should escape, may take his photograph, and measurement of his height, and ascertain his weight, name, residence, place of birth, occupation, and color of his eyes, hair, and beard.-State ex rel. Bruns v. Clausmeier, 154 Ind. 599, 77 Am. St. Rep. 511, 50 L. R. A. 73, 57 N. E. 541. 16. Same-Right of officer to takeAbuse of officer's discretion.-Officer making arrest for felony on warrant has right to exercise discretion, not only as to means taken to apprehend person named in warrant, but also as to means necessary to keep him safe and secure after such apprehension, until lawfully discharged; and he has right to take such steps and adopt measures, such as taking picture of the person arrested, weighing and measuring him, if, in his discretion, such measures may appear to be necessary to identification and recapture of person in his custody if he escapes. Unless this discretion is abused, wantonness, through malice, reckless disregard for and selfish indifference to common dictates of humanity, officer is not liable.-State ex rel. Bruns v. Clausmeier, 154 Ind. 599, 77 Am. St. Rep. 511, 50 L. R. A. 73, 57 N. E. 541. See Firestone v. Rice, 71 Mich, 377, 15 Am. St. Rep. 266, 38 N. W. 885; Diers v. Mallon, 46 Neb. 121, 50 Am. St. Rep. 598, 64 N. W. 722. or 17. Peace-officer, should not arrest one without a warrant, for a crime proved or suspected, where offense does not amount in law to felony.-Commonwealth v. Carey, 66 Mass. (12 Cush.) 246, 252; Quinn V. Heisel, 40 Mich. 576. |