4634. Officer in charge of prisoner not liable to civil arrest. Assistance. While passing through such other county or counties, the officers having the prisoner in their charge shall not be liable to arrest on civil process; and they have like power to require any citizen to aid in securing such prisoner and to retake him if he escapes, as if they were within their own county; and a refusal or neglect to render such aid shall be an offense in the same manner as if they were officers of the county where such aid shall be required. Mont. Pen. C. 2 1617; N. Dak. (1895)

7910.

CHAPTER 14.

ARREST, BY WHOM AND HOW MADE.

An arrest

4635. Arrest defined. May be made by any person. 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. [C. L. § 4852.

Cal. Pen. C. 2834.

Peace officer defined, 4609.

4636. Arrest how made. No unnecessary restraint. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of an officer. The defendant must not be subjected to any more restraint than is necessary for his arrest and detention. [C. L. § 4853.

Cal. Pen. C. 2835.

Persons arrested not to be treated with unnecessary rigor, Con. art. 1, sec. 9.

4637. When officer may arrest with or without warrant. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:

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

2.

presence.

3.

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

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, when there is reasonable cause to believe that he has committed a felony. [C. L. § 4854.

Cal. Pen. C. ? 836.

4638. When private person may arrest.

A private person may arrest another:

Railroad conductor.

1. For a public offense committed or attempted in his presence. When the person arrested has committed a felony, although not in his

2.

presence. 3.

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

4. A conductor or other person having charge of any railway train in this state shall have power to arrest without a warrant any person disturbing the peace of a traveler, or committing any offense against the laws of the state while traveling with or upon the train of which he is in charge. [C. L. § 4855.

Cal. Pen. C. 837*.

A felony having been committed, it was lawful for an officer out of his state, an officer out of his

county, and two private citizens to attempt the arrest of the defendant. People v. Coughlin, 13 U. 58; 44 P. 94.

4639. Magistrate may orally order arrest. 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. [C. L. § 4856.

Cal. Pen. C. 2838.

4640. Person arresting may summon assistance.

Any person

making an arrest may orally summon as many persons as he deems necessary to aid him therein. [C. L. § 4857.

Cal. Pen. C. 839.

Officer may command assistance, ?? 4144, 4541, 4621.

4641. Arrest by day or by night. 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, or unless the offense is committed in the presence of the person making the arrest. [C. L. § 4858.

Cal. Pen. C. 2 840*.

4642. Manner of making arrest. 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. [C. L. § 4859. Cal. Pen, C. ? 841. seen in the act of committing a crime. People v. Coughlin, 13 U. 58; 44 P. 94.

It was not necessary that intention of arrest should be conveyed to defendant, since he was first

4643. Warrant must be shown if required. If the person making the arrest is acting under the authority of a warrant, he must show the warrant, if required. [C. L. § 4860.

Cal. Pen. C. 2842.

4644. Force, when arresting under warrant. When the arrest is being made by an officer under the authority 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. [C. L. § 4861.

Cal. Pen. C. 2843.

4645. Door or window may be broken when.. To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break open the door or window of the building 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. [C. L. § 4862.

Cal. Pen. C. 2844.

The private household goods of a criminal cannot be deemed to be affected by the crimes and mis

conduct of the owner, and such property cannot be destroyed or taken, except by due process of law. Conway v. Clinton, 1 U. 215.

4646. Id. For purpose of exit. Any person who shall have 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 an 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. [C. L. § 4863.

Cal. Pen. C. 2845.

4647. Weapons to be taken from person. Delivery. 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 shall be taken. [C. L. § 4864.

Cal. Pen. C. 846. Receipt for property taken from person arrested. 5122.

Money taken from a prisoner at the time of his

arrest is his property subject to his order. Rickers v. Simcox, 1 U. 33.

4648. Private person must deliver prisoner immediately. A private person who shall have 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. [C. L. § 4865.

Cal. Pen. C. 2847.

4649. Officer arresting with warrant must proceed lawfully. 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. [C. L. § 4866.

Cal. Pen. C. 2848.

4650. Arrest without warrant. Delivery of prisoner. Complaint. When an arrest shall be made without a warrant by a peace officer or private person, the person arrested must, without unnecessary delay, be taken to the nearest or most accessible magistrate in the county in which the arrest is made, and a complaint, stating the charge against the person, must be made before such magistrate. Á conductor or other person who shall have made an arrest as provided in subdivision four of section forty-six hundred and thirty-eight, shall, without unnecessary delay, take the person so arrested before any accessible magistrate or deliver him to a peace officer; and a complaint, stating the charge against the person, must be made before such magistrate; and the magistrate before whom such charge shall be made, if the offense is triable by him, shall have full jurisdiction over said offense and the defendant, to try and determine said offense. If he have not jurisdiction to try the defendant for the offense charged, he must proceed as provided in chapter sixteen of this title. [C. L. § 4867.

Cal. Pen. C. 3 849*.

Failure to take person arrested before magistrate without delay, a misdemeanor, 4139.

4651. Service of warrant by telegraph. Procedure. Any magistrate may, by an indorsement 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. [C. L. § 4868.

Cal. Pen. C. 850*.

4652. Id. Certification and return. 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 indorsement thereon, and must return the original with a statement of his action thereunder. [C. L. § 4869.

Cal. Pen. C. ? 851.

4653. Officer may direct arrest by telegraph. In all cases when by law a peace officer may arrest a person without a warrant, or, having a warrant for the arrest of a person accused of a public offense, and such person may otherwise escape from this state, such officer may, by telegraph, direct any sheriff. constable, marshal, or policeman in this state to arrest such person, and designate the accused in said order by name, or description, or both.

N. Dak. (1895) 7939.

4654. Id. Arrest and detention of prisoner. The order may be directed generally to any of such officers, and executed by the officer receiving it. The officer executing any such order shall take into his custody the person designated therein and detain him upon such order for such length of time as shall be necessary for the officer directing the arrest to reach the place of detention by the ordinary means and course of travel, or until sooner demanded by an officer having a warrant for the arrest of such person, but in no case shall the officer arresting such person upon such order detain him longer than the time herein before mentioned.

N. Dak. (1895) 7940.

CHAPTER 15,

RETAKING AFTER ESCAPE OR RESCUE.

4655. Pursuit and rearrest. If a person arrested escapes or is rescued, the person from whose custody he shall have escaped or shall have been rescued, may immediately pursue and retake him at any time and in any place within the state. [C. L. § 4870.

Cal. Pen. C. ? 854.

Escapes, ?? 4114-4118. Rescues, ?? 4112, 4113. Justifiable homicide in retaking felon, ? 4167.

4656. Id. May break door or window. To retake the person escaping or rescued, the person pursuing may break open an outer or inner door or window of a dwelling-house or other building, if, after notice of his intention, he is refused admittance. [C. L. § 4871.

Cal. Pen. C. 855.

CHAPTER 16.

PRELIMINARY EXAMINATION.

4657. Magistrate to inform prisoner of his rights. When the defendant shall be brought before the magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings. [C. L. § 4872.

Cal. Pen. C. ? 858. Rights of accused person, Con. art. 1, secs. 7-12; 24513.

Defendant by waiving preliminary examination waives all defects in complaint against him. U. S. v. Eldredge, 5 U. 161; 13 P. 673.

4658. Time to procure counsel allowed. Message to counsel. 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 precinct or the city the defendant may name. The officer must, without delay and without fee, perform that duty. [C. L. § 4873.

Cal. Pen, C. 859.

Right to counsel, Con. art. 1, sec. 12.

4659. Examination to be proceeded with. At the time set for the hearing, the magistrate before whom the accused is brought must, unless a change of place of trial is had under the provisions of the next section, immediately after the appearance of counsel, or if none appears, after waiting a reasonable time therefor, if the accused requires the aid of counsel, proceed to examine the case. [C. L. § 4874*.

N. Dak. (1895) 7952.

Waiver of preliminary examination with consent of state, Con. art. 1, sec. 13.

4660. Change of place of trial. Affidavit. Transfer. Whenever a person accused of a public offense is brought before a justice of the peace for examination and, at any time before such examination is commenced, he files with such justice his affidavit stating that by reason of the bias or prejudice of said justice he believes he cannot have a fair and impartial examination before him, such justice must transfer said action, and all the papers therein, including a certified copy of his docket entries, to another justice of the same county; provided, that unless the parties agree upon the justice to whom said action shall be transferred, it shall be sent to the nearest justice of the county, but no more than one change of the place of examination under this section shall be had in an action.

N. Dak. (1895) 7953.

4661. Limitation on postponement, unless by consent. The examination must be completed at one session, unless the magistrate, for good cause shown, postpone it. The postponement shall not be for more than four days at each time, nor more than twelve days in all, unless by consent or on motion of the defendant. [C. L. § 4875*.

Cal. Pen. C. ? 861*.

4662. Id. Defendant to give bail or be committed. 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. [C. L. § 4876.

Cal. Pen. C. 862. 4663.

Bail, 224983-5010.

Form of commitment for examination. The commitment for examination shall be 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 be not present, the defendant may be committed to the custody of any peace officer. [C. L. § 4877.

Cal. Pen. C. ? 863.

4664. Magistrate must issue subpoenas. The magistrate must issue subpoenas, subscribed by him, for witnesses within the state, required either by the prosecution or the defense. [C. L. § 4878.

Cal. Pen. C. 2 864*.

Accused entitled to compulsory process for witnesses, Con. art. 1, sec. 12.

4665. Procedure on preliminary examination. At the examination the magistrate must first read to the defendant the complaint and the depositions of the witnesses examined on making the complaint, if depositions were taken. [C. L. § 4878*.

Cal. Pen. C. 864*.

4666. Id. Examination of witnesses in presence of defendant. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf. [C. L. § 4879.

Cal. Pen. C. 865.

Accused entitled to be confronted by witnesses, Con. art. 1, sec. 12; 4513.

4667. Id. Examination of defendant's witnesses. When the examination of witnesses on the part of the state shall have closed, any witnesses the defendant may produce may be sworn and examined. [C. L. § 4880.

Cal. Pen. C. 2 866.

4668. Id. Exclusion of witnesses. Keeping separate. While a witness shall be under examination, the magistrate may exclude all witnesses who shall not have been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other until they shall have all been examined. [C. L. § 4881.

Cal. Pen. C. 867.

Exclusion of witnesses and others, ? 696.

4669. Id. Exclusion of spectators, etc., on request. 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 county attorney, the defendant and his counsel, and the officer having the defendant in custody. [C. L. § 4882*.

Cal. Pen. C. 2868.

4670. When testimony reduced to writing. Form of deposition. 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. The magistrate before whom the examamination shall be had, may, with the consent of the county attorney, order the