cer, commanding him to search for personal property, and bring it before the magistrate.

1. Search Warrants, Use of.-They "were never recognized by the common law as processes which might be availed of by individuals in the course of civil proceedings, or for the maintenance of any mere private right; but their use was confined to cases of public prosecutions, instituted and pursued for the suppression of crime or the detection and punishment of criminals. Even in those cases, if we may rely on the authority of Lord Coke, their legality was formerly doubted; and Lord Camden said that they crept into the law by imperceptible practice. But their legality has long been considered to be established, on the ground of public necessity; because, without them, felons and other malefactors would escape detection." Robinson v. Richardson, 13 Gray, 454, per Merrick, J. In this country the right to such process depends upon statute, subject to the limitations imposed by constitutional provisions. In this state no such warrant can be issued, "but on probable cause, supported by oath, or affirmation, particularly describing the place to be searched and the person and things to be seized." State Const., art. I, sec. 19. A like provision exists in the constitution of the United States, Amendment IV.

1524. It may be issued upon either of the following grounds: 1. When the property was stolen or embezzled; in which case it may be taken on the warrant, from any place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or from any person in whose possession it may be;

2. When it was used as the means of committing a felony; in which case it may be taken on the warrant from the place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or from any person in whose possession it may be;

3. When it is in the possession of any person with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered; in which case it may be taken on a warrant from such person, or from any place occupied by him or under his control, or from the possession of the person to whom he may have so delivered it.

1. Search Warrant may be Issued, for What. "The provisions of section 643 of the criminal practice act have been extended, to the end that a search warrant may be issued to search for and take property when it was used as the means of committing a felony, or where it is in the possession of a person with intent to use it in the commission of a felony, and to kindred cases. See also, N. Y. Crim. Pr., sec. 862; see, particularly, Liv. Crim. Code, p. 481, art. 43, rules 1, 6. In the higher class of crimes the testimony is almost invariably circumstantial, and no class of circumstances is more

important, in cases of that description, in detecting and punishing guilt, than tracing to the possession of the defendant property either used as the means of committing the offense or intended to be used for that purpose. It is now usually obtained by the officers of justice by the assumption of a responsibility on their part which has no express sanction of law; and though they are rarely prosecuted for assuming this responsibility, it is rather owing to the fact that the accused party seldom escapes punishment than to the legality of the act. The propriety of legalizing the search for and seizure of property, under these circumstances, can not admit of doubt. Mr, Livingston, in his criminal code, in accordance with this idea, provided that search warrants may be issued to seize forged instruments in writing, or counterfeited coin intended to be passed, or the instruments or materials prepared for making them, arms or munitions prepared for the purpose of insurrection or riot, and weapons, implements, or other articles necessary to be produced on the trial of one accused of a crime. Liv. Crim. Code, p. 481, art. 43, rules 1, 6." Annotated Penal Code of 1872.

1525. A search warrant can not be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.

1526. The magistrate must, before issuing the warrant, examine on oath the complainant, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.

1527. The depositions must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.

1528. If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate.

1529. The warrant must be in substantially the following form:

COUNTY OF

The People of the State of California to any Sheriff, Constable, Marshal, or Policeman in the County of:

Proof, by affidavit, having been this day made before me by (naming every person whose affidavit has been taken), that (stating the grounds of the application, according to section 1525, or, if the affidavit be not positive, that there is probable cause for believing that-stating the ground of the application in the same manner), you are therefore commanded, in the day

time (or at any time of the day or night, as the case may be, according to section 1533), to make immediate search on the person of C. D. (or in the house situated, describing it or any other place to be searched, with reasonable particularity, as the case may be) for the following property: (describing it with reasonable particularity); and if you find the same or any part thereof, to bring it forthwith before me at (stating the place).

Given under my hand, and dated this eighteen

day of

E. F., justice of the peace (or as the case may be)

A. D.

1. Form of the Search Warrant.-The search warrant should be specific in terms, both as to the place to be searched, and the persons or things to be seized. General warrants have always been considered illegal. Money v. Leach, 1 W. Bl. 555; Bell v. Clapp, 10 Johns. 263; Sanford v. Nichols, 13 Mass. 286; State v. Spencer, 38 Me. 30. To command a search of the "suspected place" is not sufficient. People v. Holcomb, 3 Park. Crim. R. 656. Neither is a "building" a sufficient description of the place to be searched. State v. Spencer, 38 Me. 30. The description should be as certain in the warrant as would be necessary in a deed to convey such place. Jones v. Fletcher, 41 Id. 254; State v. Bartlett, 47 Id. 388. A warrant which describes the place to be searched as a place of common resort," is insufficient. Com. v. Liquors, 97 Mass. 332. So a warrant directing the dwelling-house of a person to be searched, only authorizes a search of the house which such person occupies and not a house owned by him, but occupied by another person. McGlinchy v. Barrows, 41 Me. 74. See Flaherty v. Longley, 61 Id. 420. It is no objection to the warrant that several different places are directed to be searched. Gray v. Daris, 27 Conn. 447. A description of the place to be searched, by giving the owner's name, and a description of the kind of liquors which he was believed to keep, is sufficient. State v. Thompson, 44 Iowa, 399.

66

2. Description of Things.-The things to be searched for should also be specifically described. Where property was described as "three cases of misses' and women's boots, of the value of one hundred dollars; a lot of oaktanned soles, of the value of fifty dollars; and ten sides of sole leather of the value of forty dollars," this was held sufficient. Dwinnels v. Boynton, 3 Allen, 310. So where the description was, "certain spirituous and intoxicating liquors, to wit: Rum, gin, brandy, wine, alcohol, and ale,” it was held sufficient. State v. Whisky, 54 N. H. 164. But a description of certain "goods, wares, and merchandise," without any specification of their character, quality, number, or weight, or any other circumstance tending to distinguish them, was held not to be such a particular description as the constitution requires. Sandford v. Nichols, 13 Mass. 285.

3. Officer must Follow Warrant. It is incumbent upon the officer to strictly observe the directions of the warrant. If he be directed to seize only stolen sugar and seize tea, he is a trespasser. Price v. Messenger, 2 Bos. & Pul. 158. But he may seize goods described in the warrant although they turn out not to be the particular ones which the person procuring it had in

mind. Stone v. Dana, 3 Metc. 98. Although, as a general rule, the officer should only seize such goods as are specified, yet there may be cases in which he would be justified in taking others. Crozier v. Cundy, 9 Dow. & Ry. 224; State v. Brennan's Liquors, 25 Conn. 278.

1530. A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

1531. The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.

1532. He may break open any outer or inner door or window of a house, for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation.

1533. The magistrate must insert a direction in the warrant that it be served in the day-time, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served at any time of the day or night.

1534. A search warrant must be executed and returned to the magistrate who issued it within ten days after its date; after the expiration of this time the warrant, unless executed, is void.

1535. When the officer takes property under the warrant, he must give a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property.

1536. When the property is delivered to the magistrate, he must, if it was stolen or embezzled, dispose of it as provided in sections 1408 to 1413, inclusive. If it was taken on a warrant issued on the grounds stated in the second and third subdivisions of section 1524, he must retain it in his possession, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property taken is triable.

1537. The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken, made publicly or in the presence of the person from whose possession it was taken, and of the applicant for the warrant, if they are present, verified by the affidavit of the officer at the foot of the inventory, and taken before the magis

trate at the time, to the following effect: "I, R. S., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant."

1538. The magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant.

1539. If the grounds on which the warrant was issued be controverted, he must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and authenticated in the manner prescribed in section 869.

1540. If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken.

1541. The magistrate must annex together the depositions, the search warrant, and return, and the inventory, and return them to the next term of the county court having power to inquire into the offenses in respect to which the search warrant was issued, at or before its opening on the first day.

1542. When a person charged with a felony is supposed by the magistrate, before whom he is brought, to have on his person a dangerous weapon, or anything which may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order, or to the order of the court in which the defendant may be tried.

CHAPTER IV.

PROCEEDINGS AGAINST FUGITIVES FROM JUSTICE.

SECTION 1547. Rewards for the apprehension of fugitives from justice. 1548. Fugitives from another state, when to be delivered up. 1549. Magistrate to issue warrant.

1550. Proceedings for the arrest and commitment of the person

charged.

1551. When and for what time to be committed.

1552. His admission to bail.

1553. Magistrate must notify district attorney of the arrest.

1554. Duty of the district attorney.

1555. Person arrested, when to be discharged.

1556. Magistrate to return his proceedings to the next superior

court. Proceedings thereon.