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istrate of the county in which the offense is triable, and the depositions of the complainant or prosecutor, and of the witnesses who may have been produced, shall be delivered by the magistrate to the officer to whom the warrant is delivered.
ART. 1458, Sec. 122. The officer who executes the warrant shall take the defendant before the nearest or most accessible magistrate of the county in which the offense is triable, and shall deliver to such magistrate the depositions and the warrant with his return indorsed thereon, and such magistrate shall proceed in the same manner as upon a warrant issued by himself.
Sec. 123. If the offense charged in the warrant issued pursuant to section one hundred and twenty-one be a misdemeanor, the officer shall, upon being so required by the defendant, take him before a magistrate of the county in which the said warrant is issued, who shall admit the defendant to bail, and immediately transmit the warrant, depositions and recognizance, to the clerk of the court in which the defendant is required to appear.
ART. 1459, Sec. 124. Arrest is the taking of a person into custody that he may be held to answer for a public offense.
ART. 1460, Sec. 125. An arrest may be either: 1. By a peace officer under a warrant. 2. By a peace officer without a warrant; or, 3. By a private person. Sec. 126. Every person shall aid an officer in the execution of a warrant, if the officer require his aid, and be present and acting in its execution.
ART. 1461, Sec. 127. If the offense charged be a felony, the arrest may be made on any day, and at any time of the day or night. If it be a misdemeanor, the arrest shall not be made at night, unless upon the direction of the magistrate indorsed upon the warrant.
ART. 1462, Sec. 128. An arrest shall be made by an actual restraint of the person of the defendant or by his submission to the custody of the officers.
Sec. 129. The defendant shall not be subjected to any more restraint than is necessary for his arrest and detention.
Sec. 130. The officer shall inform the defendant that he acts under the authority of the warrant, and shall also show the warrant if required.
Sec. 131. If after notice of intention to arrest the defendant, he either flee or forcibly resists, the officer may use all necessary means to effect the arrest.
ART. 1463, Sec. 132. The officer may break open any outer or inner door or window of a dwelling-house, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance.
Sec. 133. An officer may break open any outer or inner door or window of a dwelling-house, for the purpose of liberating a person who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation.
ART. 1464, Sec. 134. A peace officer may, without a warrant, arrest a person: 1. For a public offense, committed or attempted in his presence. 2. Where the person arrested has committed a felony, although not in his presence. 3. Where 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 reasonabie cause of the commission of a felony by the party arrested.
ART. 1465, Sec. 135. To make an arrest, as provided in the last section, the officer may break open any outer or inner door or window of a dwelling-house if, after notice of his office and purpose, he be refused admittance.
ART. 1466, Sec. 136. He may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterwards appear that a felony had not been committed.
ART. 1467, Sec. 137. When arresting a person without a warrant, the officer must inform him of his authority, and the cause of the arrest, except when he is in the actual commission of a public offense, or when he is pursued immediately after an escape.
ART. 1468, Sec. 138. He may take before a magistrate any person, who, being engaged in a breach of the peace, is arrested by a bystander and delivered to him. ART. 1469, Sec. 139. When a public offense is committed in the presence of a magistrate he may, by a verbal order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest.
ART. 1470, Sec. 140. 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 been in fact committed and he has reasonable cause for believing the person arrested to have committed it.
Sec. 141. He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit except when he is in the actual commission of the offense, or when he is arrested on pursuit immediately after its commission.
ART. 1471, Sec. 142. If the person to be arrested have committed a felony, and a private person, after notice of his intention to make the arrest, be refused admittance, he may break open any outer or inner door or window of a dwellinghouse for the purpose of making the arrest.
ART. 1472, Sec. 143. A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take him before a magistrate, or deliver him to a peace officer.
ART. 1473, Sec. 144. If a person arrested escape or be 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.
Sec. 145. To retake the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open any outer or inner door or window of a dwelling-house.
ART. 1474, Sec. 146. 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 shall immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had.
ART. 1475, Sec. 147. He shall also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose, and shall, upon the request of the defendant, require a peace officer to take a message to such counsel within the township or city as the defendant may name. The officers shall, without delay and without fee, perform that duty.
ART. 1476, Sec. 148. The magistrate shall immediately after the appearance of counsel, or if defendant require the aid of counsel after waiting a reasonable time therefor, proceed to examine the case.
Sec. 149. The examination must be completed at one session, unless the magistrate for good cause shown adjourn it. The adjournment 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.
ART. 1477, Sec. 150. If an adjournment be had for any cause, the magistrate shall commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this act, as security for his appearance at the time to which the examination is adjourned.
ART. 1478, Sec. 151. The commitment for examination shall be 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 the county of If the sheriff be not present, the defendant may be committed to the custody of a peace officer.
ART. 1479, Sec. 152. At the examination the magistrate shall in the first place
read to the defendant the depositions of the witnesses examined on the taking of the information. He shall also issue subpenas for any witnesses required by the prosecutor or the defendant, as provided in section five hundred and forty-eight. Sec. 153. The witnesses shall be examined in the presence of the defendant, and may be cross-examined in his behalf.
ART. 1480, Sec. 154. When the examination of witnesses on the part of the people is closed, the magistrate shall distinctly inform the defendant that it is his right to make a statement in relation to the charge against him, (stating to him the nature thereof,) that the statement is designed to enable him, if he see fit, to answer the charge and to explain the facts alleged against him, that he is at liberty to waive making a statement, and that his waiver cannot be used against him on the trial.
ART. 1481, Sec. 155. If the defendant waive his right to make a statement, the magistrate shall make a note thereof immediately following the depositions of the witnesses against the defendant, but the fact of his waiver shall not be used against the defendant on the trial.
ART. 1482, Sec. 156. If the defendant choose to make a statement, the magistrate shall proceed to take the same in writing without oath, and shall put to the defendant the following questions only: "What is your name and age? Where were you born? Where do you reside, and how long have you resided there? What is your business or profession? Give any explanation you may think proper of the circumstances appearing in the testimony against you, and state any facts which you think will tend to your exculpation."
Sec. 157. The answer of the defendant to each of the questions must be distinctly read to him as it is taken down. He may thereupon correct, or add to his answer, and it shall be corrected until it is made conformable to what he declares to be the truth.
ART. 1483, Sec. 158. The statement must be reduced to writing by the magistrate, or under his direction, and authenticated in the following form: 1. It must set forth in detail that the defendant was informed of his rights as provided by section one hundred and fifty-four, and that after being so informed he made the statement. 2. It must contain the questions put to him, and his answers thereto, as provided in sections one hundred and fifty-seven and one hundred and fifty-six. 3. It may be signed by the defendant, or he may refuse to sign it; but if he refuse to sign it, his reason therefor must be stated as he gives it. 4. It must be signed and certified by the magistrate.
ART. 1484, Sec. 159. After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, shall be sworn and examined.
Sec. 160. The witnesses produced on the part either of the people or of the defendant, shall not be present at the examination of the defendant, and while a witness is under examination, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate and to be prevented from conversing with each other until they are all examined.
ART. 1485, Sec 161. The magistrate shall 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.
[Sec. 162 repealed by act of May 5, 1855.]
ART. 1486, Sec. 163. After hearing the proofs and the statement of the defendant, if he have made one, if it appear either that a public offense has not been committed, or there is no sufficient cause to believe the defendant guilty thereof, the magistrate shall order the defendant to be discharged, by an indorsement on the depositions and statement signed by him to the following effect: "There being no sufficient cause to believe the within-named A. B. guilty of the offense within mentioned, I order him to be discharged."
ART. 1487, Sec. 164. If, however, it appear from the examination that a public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate shall in like manner indorse on the depositions and statement an order signed by him to the following effect: "It appearing to me by the within depositions [and statement if any] that the offense therein mentioned [or any other offense according to the fact, stating generally the nature thereof,] has been committed, and that there is sufficient cause to believe the within-named A. B. guilty thereof, I order that he be held to answer the same." ART. 1488, Sec. 165. If the offense be not bailable, the following words, or words to the same effect, shall be added to the indorsement: "And that he be committed to the sheriff of the county of
ART. 1489, Sec. 166. If the offense be bailable and bail be taken by the magistrate, the following words, or words to the same effect, shall be added to the indorsement: "And I have admitted him to bail to answer by the recognizance hereto annexed."
Sec. 167. If the offense be bailable and the defendant be admitted to bail, but bail have not been taken, the following words, or words to the same effect, shall be added to the indorsement mentioned in section one hundred and sixty-four: "And that he be admitted to bail, in the sum of dollars, and be committed
to the sheriff of the county of -, until he gives such bail."
ART. 1490, Sec. 168. If the magistrate order the defendant to be committed, as provided in sections one hundred and sixty-five and one hundred and sixtyseven, he shall make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or if that officer be not present, to a peace officer, who shall deliver the defendant into the proper custody, together with the commitment.
Sec. 169. The commitment must be to the following effect: "County of (as the case may be). The people of the state of California to the sheriff of the county of An order having been this day made by me that A. B. be held to answer upon a charge of (stating briefly the nature of the offense, and as near as may be the time when, and the place where, the same was committed), you are commanded to receive him into your custody, and detain him until he be legally discharged. Dated this day of 18-."
ART. 1491, Sec. 170. On holding the defendant to answer, the magistrate shall take from each of the material witnesses examined before him, on the part of the people, a written recognizance, to the effect that he will appear and testify at the court to which the depositions and statements are to be sent, or that he will forfeit the sum of five hundred dollars.
Sec. 171. Whenever the magistrate shall be satisfied by proof, on oath, that there is reason to believe that any such witness will not fulfill his recognizance to appear and testify, unless security be required, he may order the witness to enter into a written recognizance with such sureties and in such sum as he may deem meet for his appearance, as specified in the last section.
Sec. 172. Infants and married women, who are material witnesses against the defendant, may in like manner be required to procure sureties for their appearance, as provided in the last section.
ART. 1492, Sec. 173. If a witness required to enter into recognizance to appear and testify either with or without sureties, refuse compliance with the order for that purpose, the magistrate shall commit him to prison until he comply or be legally discharged.
ART. 1493, Sec. 174. When, however, it shall satisfactorily appear by the examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people; such examination shall be by question and answer, and shall be conducted in the same manner as the examination before a committing magistrate,
is required by this act to be conducted, and the witness shall thereupon be discharged.
Sec. 175. The last section shall not apply to the prosecutor or to an accomplice in the commission of the offense charged.
ART. 1494, Sec. 176. When a magistrate has discharged a defendant, or has held him to answer, as provided in sections one hundred and sixty-four and one hundred and sixty-five, he shall return without delay to the clerk of the court at which the defendant is required to appear, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all recognizance of bail or for the appearance of witnesses, taken by him.
21. Proceedings after Commitment and before Indictment.
ART. 1495, Sec. 177. All public offenses prosecuted in the district court and the courts of session, must be prosecuted by indictment, except as provided in the
ART. 1496, Sec. 178. Where the proceedings are had for the removal of district, county or township officers, they may be commenced by an accusation in writing, as provided in section seventy and eighty-three.
ART. 1497, Sec. 179. All accusations against district, county and township officers, and all indictments, must be found in the court of sessions.
ART. 1498, Sec. 180. The formation of grand juries is prescribed by special
Sec. 181. A challenge may be taken to the panel of the grand jury, or to any individual grand juror, in the cases hereinafter prescribed, by the people or by the defendant.-[Am. May 15, 1854; R. S. St. 1851, 232; St. 1850, 290; C. L. 446.
ART. 1499, Sec. 182. A challenge to the panel may be interposed for one or more of the following causes: 1. That the requisite number of ballots was not drawn from the jury box of the county as prescribed by law. 2. The notice of the drawing of the grand jury was not given as prescribed by law. 3. That the drawing was not had in the presence of the officers or officer designated by law.
ART. 1500, Sec. 183. A challenge to an individual grand juror may be interposed for one or more of the following causes only: I. That he is a minor. That he is an alien. 3. That he is insane. 4. That he is the prosecutor upon a charge against the defendant. 5. That he is a witness on the part of the prosecution, and has been served with process or bound by an undertaking as such. 6. That he has formed or expressed a decided opinion that the defendant is guilty of the offense for which he is held to answer.
ART. 1501, Sec. 184. The challenges mentioned in the last three sections may be oral, and shall be entered upon the minutes, and tried by the court in the same manner as challenges in the case of a trial jury, which are triable by the court.
Sec. 185. The court shall allow or disallow the challenge, and the clerk shall enter its decisions in the minutes.
ART. 1502, Sec. 186. If a challenge to the panel be allowed, the grand jury are prohibited from inquiring into the charge against the defendant by whom the challenge was interposed. If they should, notwithstanding, do so and find an indictment against him, the court shall direct the indictment to be set aside.
ART. 1503, Sec. 187. If a challenge to an individual grand juror be allowed, he shall not be present at, or take part in, the consideration of the charge against the defendant who interposed the challenge or the deliberations of the grand jury thereon.
Sec. 188. The grand jury shall inform the court of a violation of the last section, and it shall be punished by the court as a contempt.
ART. 1504, Sec. 189. A person held to answer to a charge for a public offense, can take advantage of any objection to the panel or to an individual grand juror,