assist is punishable if the officer is proceeding by lawful authority: State v. Shaw, supra; or if he is not, his command will be a justification to one who, knowing his official character,

840. When the arrest may be made.

comes in good faith to his assistance: McMahan v. Green, 34 Vt. 69; Reed v. Rice, 2 J. J. Marsh. 44; see Dietrichs v. Shaw, 43 Ind. 175.

SEC. 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.

841. Arrest, how made.

SEC. 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.

Immediate pursuit.-In People v. Pool, 27 Cal. 572, it was said that if, after committing a felony, the guilty parties flee and soon after are pursued by officers and overtaken at a distance of ten or twelve miles from the place where the crime was committed, this is immediate or fresh pursuit, and that notice of the official character of the person attempting to make the arrest, or of the cause of the arrest, is unnecessary.

Disclosure of purpose to arrest.-An officer or a private person seeking to arrest another should make known his purpose: Brooks V. Commonwealth, 61 Pa. St. 352; State v. Bryant, 65 N. C. 327; People v. Pool, 27 Cal.

842. Warrant must be shown, when.

576. The circumstances of each particular case may render this purpose plain; and if they do, resistance to the arrest will be illegal: 1 Bish. Crim. Proc., sec. 158. Thus if one is wearing the accustomed badge of office, this is sufficient to give notice to the arrested party: Yates v. People, 32 N. Y. 509; Commonwealth v. Tobin, 108 Mass. 426. Where a party is apprehended in the commission of an offense, or upon fresh pursuit afterward, notice of the official character of the person making the arrest, or the cause of the arrest, is unnecessary, because he must know the reason why he is apprehended: People v. Pool, 27 Cal. 576.

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

Must show warrant.-A person need not take for granted that a person who says that he has a warrant against him speaks the truth. The party arrested has a right to see the warrant, if the arrest is made by virtue of one: Hall v. Roche, 8 T. R. 187; State v. Freeman, 8 Iowa, 428; Plasters v. State, 1 Tex. App. 673; State v. Phinney, 42 Me. 384; Drennan v.

843. What force may be used.

People, 10 Mich. 169. Where the officer is known, the party arrested is not entitled to a perusal of the warrant until he has acknowledged the officer's authority, and his power acquiesced in: Commonwealth v. Cooley, 6 Gray, 350, 356, 357. See State v. Townsend, 5 Harr. (Del.) 487; Arnold v. Steeves, 10 Wend. 514.

SEC. 843. 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.

The officer may take the life of a person if the arrest cannot be accomplished without resort to such violent means: Sec. 196, note. He is also justified, when it appears necessary,

in making an assault upon any one interfering to prevent the arrest or to assist the party from being arrested: Doering v. State, 49 Ind. 56.

844. Doors and windows may be broken, when.

SEC. 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. [Amendment, approved March 30, 1874; Amendments 1873-4, 435; took effect July 1, 1874.]

Officer, in making arrest, may break open doors and windows: See 1 Russell on Crimes, 839; Commonwealth v. Tobin, 108 Mass. 426; Commonwealth v. Reynolds, 120 Id. 190.

Entering house to make arrest.-Admittance must first be demanded and refused be

845. Same.

fore an officer is justified in breaking into a house in which the person to be arrested is, or is believed to be: 1 Bish. Crim. Proc., sec. 201; Launock v. Brown, 2 Barn. & Ald. 592; Commonwealth v. McGahey, 11 Gray, 194.

SEO. 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 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.

846. Weapons may be taken from persons arrested.

SEC. 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. Duty of a private person who has made an arrest.

SEO. 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. Duty of officer arresting with warrant.

SEC. 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.

Warrant of arrest, form of: Sec. 814.

849. Person arrested without a warrant to be taken before a magistrate-Information to be filed.

SEC. 849. When an arrest is made without a warrant by a peace-officer 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. Arrest by telegraph.

SEC. 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. [Amendment, approved April 12, 1880; Amendments 1880, 33 (Ban. ed. 200); took effect immediately.]

851. Same.

SEC. 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 indorsement thereon, and must return the original, with a statement of his action thereunder.

186

CHAPTER VI.

RETAKING AFTER AN ESCAPE OR RESCUE.

854. May be at any time or in any place in the state.

SEC. 854. If a person arrested escape 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.

Rescues: Sec. 101, note. Escapes: Sec. 105, note.

Assisting escapes: Sec. 109.

855. May break open door or window if admittance refused.

SEC. 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.

CHAPTER VII

EXAMINATION OF THE CASE, AND DISCHARGE OF THE DEFENDANT, OR HOLDING HIM TO ANSWER.

858. Magistrate to inform defendant of charge, and his right to counsel.

SEC. 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 of his right to the aid of counsel in every stage of the proceedings. Waiver of examination.—It is held that the provisions of the Penal Code do not authorize a defendant to waive the preliminary examination provided for in this chapter: Kalloch v.

Superior Court, 56 Cal. 229; Ex parte Walsh, 39 Id. 705. The charge mentioned in this section and the indictment mentioned in section 917 are not the same thing: Ex parte Ryan, 44 Id. 557.

859. Time to send and sending for counsel.

SEC. 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.

Defendant's right to counsel.-The right to have the assistance of counsel is a constitutional one. Art. 1, sec. 13; see sec. 825.

860. Examination, when to proceed.

SEO. 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.

861. When to be completed-Postponement.

SEC. 861. The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpone it. The postponement 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.

Examination must be brought on within six days.-A person who is arrested, charged with the commission of a crime in another state with a view to his being surrendered on a requi

sition from the governor of that state, is entitled to his discharge if his examination is not brought on before a magistrate within six days: Ex parte Rosenblat, 51 Cal. 287.

862. On postponement, defendant to be committed or discharged on bail.

SEC. 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. Form of commitment.

SEC. 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. Depositions to be read on examination and subpœnas issued.

SEC. 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. Examination of witnesses to be in presence of defendant, etc.

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

866. Examination of defendant's witnesses.

SEC. 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. Defendant may be a witness.-The ac- free from undue influence, it may be used cused may become a witness for or against him- against him on the trial for the offense: People self at a preliminary examination; and if it v. Kelley, 47 Cal. 125. appear that his testimony was voluntary and

867. Exclusion and separation of witnesses.

SEC. 867. 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.

Exclusion and separation of witnesses. The exclusion of witnesses in a criminal action is not a matter of absolute right, but rests in the discretion of the trial court: People v. Garnett, 29 Cal. 622. The wife and daughters of the defendant, if witnesses, may be excluded from the court-room: People v. Sprague, 53 Id. 491. The circumstance that a witness remained in the court-room and heard the evidence of other

witnesses, in disobedience to an order of the court excluding him from the court-room while other witnesses were under examination, is no ground for rejecting his testimony. He may be punished for contempt, but a party cannot, without fault on his own part, be deprived, for such disobedience, of the testimony of the witness: People v. Boscovitch, 20 Id. 436; sec. 1102, last paragraph in note.

868. Who may be present at the examination.

SEC. 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.

869. Authentication of deposition in cases of homicide.

SEC. 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 short-hand reporter. The deposition or testimony of the witness must be authenticated in the following form:

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

2. 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 short-hand, the answer or answers of the witness need not be read to him;

3. 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;

4. 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 short-hand, it need not be signed by the witness;

5. It must be signed and certified by the magistrate when reduced to writing by him, or under his direction, and when taken down in short-hand, the transcript of the reporter appointed as aforesaid, when written out in long-hand writing, and certified as being a correct statement of such testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings. The reporter shall, within ten days after the close of such examination, if the defendant be held to answer the charge, transcribe into long-hand writing his said short-hand notes, and certify and file the same with the county clerk of the county or city and county in which the defendant was examined, and shall, in all cases, file his original notes with said clerk;

6. The reporter's compensation shall be fixed by the magistrate before whom the examination is had, and shall not exceed that now allowed reporters in the superior courts of this state, and shall be paid out of the treasury of the county or the city and county in which the examination is had, on the certificate and order of the said magistrate. [Amendment, approved March, 14, 1885; Statutes and Amendments 1885, 131; took effect from and after its passage; repealed conflicting acts.]

Testimony of witnesses to be reduced to writing, otherwise proceedings are invalid: Kalloch v. Superior Court, 56 Cal. 229. See presumption drawn in favor of judge doing his duty: People v. Smith, 59 Id. 365.

Demand necessary in other cases than homicide to necessitate testimony to be reduced to writing: People v. Smith, 59 Čal. 365.

Deposition not the best evidence. The deposition taken in pursuance of this section is not the best or only evidence of what a witness may have sworn to. Oral evidence is admissible to show what was sworn upon the examination, notwithstanding the evidence may have been reduced to writing: People v. Curtis, 50 Cal. 95.

Reporters' fees.-Section 2 of the act of March 3, 1881, amending section 869, was treated by the supreme court, in Fox v. Lindley, 57 Cal. 650, as a part of the latter section, but it was held inoperative, because there was no law prescribing the fees that reporters were entitled to charge for their services rendered under section 869.

Deposition as evidence.-In People v. Morine, 54 Cal. 575, it was said that before the deposition of a witness, taken at the preliminary examination, could be read in evidence

against defendant at the trial, it must appear that the provisions of the above section had been strictly complied with. A question was also made whether such deposition could be made use of at all against the defendantwhether section 686 is constitutional-but the court did not find it necessary to decide it. Such deposition is not the best or only evidence of what was sworn to before the committing magistrate. The prosecution may, on the trial of the defendant, prove by parol what was sworn to before such magistrate: People v. Curtis, 50 Id. 95.

"Taking the testimony of a witness on behalf of the people in a criminal case by deposition is an exception to the rule which entitles the defendant in a criminal action to be confronted with the witnesses against him, in the presence of the court; and every substantial requirement of the law which authorizes it must be observed. Any real departure from the course prescribed for the taking of the deposition renders the deposition itself objectionable: People v. Morine, 54 Cal. 575; Williams v. Chadbourne, 6 Id. 559; People v. Chung Ah Chue, 57 Id. 567:" People v. Mitchell, 64 Id. 85. Here the fact that the witness was unable to procure sureties for his appearance at the trial was tno