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Criminal law and procedure of California including the penal code of California online

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1493. In cases where any party is held under illegal restraint
or custody, or any other person is entitled to the restraint or
custody of such party, the judge or court may order such party
to be committed to the restraint or custody of such person as la
by law entitled thereto.

126 Cal. 619; 128 Cal. 31,

Disposition of party, pending proceedings on return.

1494. Until judgment is given on the return, the court or
judge before whom any party may be brought on such writ
may commit him to the custody of the sheriff of the county, or
place him in such care or under such custody as his age or cir-
cumstances may require.

Defect of form in the writ immaterial, when.

1495. No writ of habeas corpus can be disobeyed for defect
of form, if it sufficiently appear therefrom in whose custody or
nnder whose restraint the party imprisoned or restrained is, the
oflacer or person detaining him, and the court or judge before
whom he is to be brought.

Imprisonment after discharge, when permitted.

1496. No person who has been discharged by the order of
the court or judge upon habeas corpus can be again imprisoned,
restrained, or kept in custody tor the same cause, except in the
following cases:

1. If he has been discharged from custody on a criminal
charge, and is afterwards committed for the same offense, by
legal order or process;



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1497-1604 PBNAL CODE. 744

2. If, after a discharge lor defect of proof, or for any defect
of the process, warrant, or commitment in a. criminal case, the
prisoner is again arrested on sufficient proof and committed
by legal process for the same offense.

64 Cal. 156.

Warrant may issue instead of writ, in certain cases.

1497. When it appears to any court, or judge, authorized by
law to issue tlie writ of habeas corpus, that any one is illegally
held in custody, confinement, or restraint, and that there is
reason to believe that such person will be carried out oi the
Jurisdiction of the court or judge before whom the application
Is made, or will suffer some irreparable injury before com-
pliance with the writ of habeas corpus can be enforced, such
court or judge may cause a warrant to be issued, reciting the
facts, and directed to the sheriff, coroner, or constable of the
county, commanding such officer to take such person thus held
in custody, confinement, or restraint, and forthwith bring him
before such court or judge, to be dealt with according to law.

Warrant may include person charged with illegal detention.

1498. The court or judge may also insert in such warrant
a command for the apprehension of the person charged with
Buch illegal detention and restraint.

Warrant, how executed.

1499. The officer to whom such warrant is delivered must
execute it by bringing the person therein named before the
court or judge who directed the issuing of such warrant

Return and hearing on.

1500. The person alleged to have such party under illegal
confinement or restraint may make return to such warrant
as in case of a writ of habeas corpus, and the same may be
denied, and like allegations, proofs, and trial may thereupon
be had as upon a return to a writ of habeas corpus.

Party may be discharged or remanded.

1501. If such party is held under illegal restraint or custody,
he must be discharged; and if not, he must bo restored to the
care or custody of the person entitled thereto.

Writ and process may issue at any time.

1502. Any writ or process authorized by this chapter may be
issued and served on any day or at any time.

By whom issued and when returnable.

1503. All writs, warrants, process, and subpoenas authorized
by the provisions of this chapter must be issued by the clerk
cf the court, and, except subpoenas, must be sealed with the
seal of such court, and served and returned forthwith, unless
the court or judge shall specify a particular time for any such
return.

Where returnable,

1504. All such writs and process, when made returnable
before a judge, must be returned before him at the county
seat, and there heard and determined. [Amendment approved
February 18. 1880, p. 4.]

69 Cal. 238.



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745 HABEAS CORPUS — CORONERS* INQUESTS. 1605-1613

Damages for failure to Issue or obey the writ.

1505. If any Judge, after a proper application Is made, refuses
to grant an order for a writ of habeas corpus, or If the ofQcer
or person to whom such writ may be directed, refuses obedience
to the command thereof, he shall forfeit and pay to the person
aggrieved a sum not exceeding five thousand dollars, to be
recovered by action In any court of competent jurisdiction.

79 Cal. 31.



CHAPTER II.

OF CORONERS' INQUESTS AND DUTIES OF CORONERS.

Sec. 1510 Coronor to summon Jury to Inquire Into cause of death,

irill. Jurors to l»e sworn.

ir»12. Witnesses to l)e summoned.

1513. Witnesses compelled to attend.

1514. Verdict of Jury In writing. What to contain.

1515. Testimony In writing, and where filed.

1516. Exception.

1517. Coroner to Issue warrant, when.

1518. Form of warrant.

1519. How served.

Coroner to summon Jury to inquire into cause of death.

1510. When a coroner is Informed that a person has been
killed, or has committed suicide, or has suddenly died under
such circumstances as to afford a reasonable ground to sus-
pect that his death has been occasioned by the act of another
by criminal means, he must go to the place where the body Is,
cause it to be exhumed, if it has been interred, and summon
not less than nine nor more than fifteen persons, qualified by
law to serve as Jurors, to appear before him forthwith, at the
place where the body of deceased is, to inquire into the cause
of the death.

Jurors to be sworn.

1511. When six or more of the jurors attend, they must be
sworn by the coroner to inquire who the person was, and when,
where, and by what means he came to his death, and into the
circumstances attending his death: and to render a true verdict
thereon, according to the evidence offered them, or arising from
the inspection of the body.

Witnesses to be summoned.

1512. Coroners may issue subpoenas for witnesses, returnable
forthwith, or at such time and place as they may appoint,
which may be served by any competent person. They must
summon and examine as witnesses every person who, in their
opinion, or that of any of the jury, has any knowledge of the
facts, and may summon a surgeon or physician to inspect the
body and give a professional opinion as to the cause of the
death.

Witnesses compelled to attend. ^

1513. A witness served with a subpoena may be compelled
to attend and testify, or punished by the coroner for disobedi-
ence, in like manner as upon a subpoena issued by a justice of
the peace.

fi> Cal. 6.>1: 122 Cal 638.



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1514-1519 PENAL OODE. 746

Verdict of Jury in writing. What to contain.

1514. After inspecting the body and hearing the testimony,
the jury must render their verdict and certify the same by an
inquisition in writing, signed by them, and setting forth who
the person killed is, and when, where, and by what means he
came to his death; and if he was killed, or his death occasioned
by the act of another, by criminal means, who is guilty thereof.

Testimony in writing, and where filed.

1515. The testimony of the witnesses examined before the
coroner's jury must be reduced to writing by the coroner, or
under his direction, and forthwith filed by him, with the
inquisition, in the office of the clerk of the Superior Court of
the county. [Amendment approved April 12, 1880; Amend-
ments 1880, p. 35. In effect April 12, 1880.]

69 Cal. 650.

Exception,

1516. If, however, the person charged with the commission
of the offense is arrested before the inquisition can be filed,
the coroner must deliver the same, with the testimony taken,
to the magistrate before whom such person may be brought,
who must return the same, with the depositions and statement
taken before him, to the office of the clerk of the Superior
Court of the county. [Amendment approved April 12, 1880;
Amendments 1880, p. 35. In effect April 12. 1880.J

Coroner to issue warrant, when.

1517. If the jury find that the person was killed by another,
under curcumstances not excusable or justifiable by law, or that
his death was occasioned by the act of another by criminal
means, and the party committing the act is ascertained by the
inquisition, and is not in custody, the coroner must issue a
warrant, signed by him, with his name of office, into one or
more counties, as may be necessary for the arrest of the '^per-
son charged.

Form of warrant.

1518. The coroner's 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 this state:

An inquisition havitg been this day found by a coroner's
jury before me, stating that A B has come to his death by
the act of C D, by criminal means [or as the case may be, as
found by the inquisition], you are therefore commanded forth-
with to arrest the above named C D, and take him before the
nearest or most accessible magistrate in this county.

Given under my hand this day of , A. D.

eighteen . E F, Coroner of the county of .

How served.

1519. The coroner's warrant may be served in any county,
and the officer serving it n*ust proceed thereon, in all respects,
as upon a warrant of arrest on an information before a magis-
trate, except that when served In another county it need not be
Indorsed by a magistrate oi that county.



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747 coroners' inquests— search warrants. 1523-1524

CHAPTER III.
OP SEARCH WARRANTS.

Sec. 1523. Search-warrant defined.

1524. Upon what irround It may issae.

1525. It cannot be Issued but upon probable cause, etc.

1526. Magistrates must examine, on oath, complainant, etc.

1527. Depositions, what to contain.

1528. When to Issue warrant.
1520. Form of warrant.

1530. By whom served.

1531. Officer may break open door, etc., to execute warrant.

1532. May break open door, etc., to liberate person acting In his

aid.

1533. When warrant may be served In the night.

. 1534. Within what time warrant must be executed.

1535. Officer to give receipt for property taken.

1536. Property, how disposed of.

1537. Return of warrant and Inventory of property taken.

1538. Copy of Inventory, to whom delivered.

1539. Proceedings, If grounds of warrant are controverted.

1540. Property, when to be restored.

1541. Depositions, warrants, etc., to be returned by magistrate to

county court.

1542. Search of defendant In presence of magistrate.

Search warrant defined.

1523. A search warrant is an order in writing. In the name
of the people, signed by a magistrate, directed to a peace
officer, commanding him to search for personal property, and
bring it before the magistrate.

i 68 Cal. 288.

Upon what grounds it may issue.

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 a means of committing a public offense, or in the
posseFsIon 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 the 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

4. When the property is a cask, keg, bottle, vessel, siphon,
can, case, or other package, bearing printed, branded, stamped,
engraved, etched, blown, or otherwise attached or produced
thereon the duly filed trademark or name of the person by
whom, or in whose behalf, the search warrant is applied for.
In the possession of any person except the owner thereof, with
the intent to sell or traffic in the same, or refill the same with
intent to defraud the owner thereof, with such intent, and
without such owner's consent thereof, or unless the same shall
have been purchased from the owner thereof; in which case it
may be taken on the warrant from such person, or from any



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1525-1530 PENAL CODE. 748

place occupied by him, or under his control, or from the
possession of the person to whom he may have delivered it.
[In effect 60 days from March 9, 1899, p. 87.]

It cannot be issued but upon probable cause, etc.

1525. A search warrant cannot 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.

Magistrates must examine, on oath, complainant, etc

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 tbem
to be subscribed by the parties making them.

75 Cal. 372.

Depositions, what to contain.

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

75 Cal. 372.

When to issue warrant.

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.

Form of warrant.

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 everj' 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 day of ,

A. D. eighteen .

E F, Justice of the Peace [or as the case may be].

6S Cal. 2S9.

By whom served.

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 rexiuiring it, he being
present and acting in its execution.



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749 SEABCH WARRANTS. 1631-1588

Officer may break open door, etc., to execute warrant.

1631. The officer may break open any outer or inner door or
window of a house, or any part of a house, or anjrthing therein^
to execute the warrant, ii, after notice of his authority and
purpose, he is refused admittance.

May break open door, etc., to liberate person acting in his aid*

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.

When warrant may be served in the night.

1533. The magistrate must insert a direction in the warrant
that it be served In the daytime, unless the affidavits are posi-
tive 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.

Within what time warrant must be executed.

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.

Officer to give receipt for property taken.

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.

Property, how disposed of.

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 pos-
session, subject to the order of the court to which he Is required
to retui^ the proceedings before him, or of any other court in
which the oftense In respect to which the property taken is
triable.

68 Cal, 289; 75* Cal. S72.

Return of warrant and inventory of property taken.

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
magistrate at the time, to the following effect: "I, R S, the
officer by \svhom this warrant was executed, do swear that the
aoove Inventory contains a true and detailed account of all
the property taken by me on the warrant."

Copy of inventory, to whom delivered.

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.



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1539-1547 PENAL CODE. 750

Proceedings, If grounds of warrant are controverted.

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.

Property, when to be restored.

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.

Depositions, warrants, etc., to be returned by magistrate to
county court.

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 war-
rant was issued, at or before its opening on the first day.

75 Cal. 372.

Search of defendant In presence of magistrate.

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.

68 Cal. 288.



CHAPTER IV.
PROCEEDINGS AGAINST FUGITIVES FROM JUSTICE.

Sec. 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. Ills admission to ball.

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 superior court.

1557. Fugitives from this state— accounts.

1558. No fee to be paid to public officer procuring surrender.

Rewards for the apprehension of fugitives from justice.

1547. The governor may offer a reward, not exceeding one
thousand dollars, payable out of the general fund, for the
apprehension:

1. Of any convict who has escaped from the state prison;
or,

2. Of any person who has committed, or is charged with the
commission of, an offense punishable with death.

120 Cal. 265.



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751 PROCEEDINGS AGAINST FUGITIVES. 1548-1554

Fugitives from another state, when to be delivered up.

1548. A person charged in any state of the United States
with treason, felony, or other crime, who flees from justice and
Is found In this state, must, on demand of the executiva
authority of the state from which he fled, be delivered up by
the governor of this state, to be removed to the state having
Jurisdiction of the crime.

49 Cal. 43.

IMagistrate to issue warrant.

1549. A magistrate may Issue a warrant for the apprehension
of a person so charged, who flees from justice and is found in
this state.

49 Cal. 434.

Proceedings for the arrest and commitment of the person
charged.

1550. The proceedings for the arrest and commitment of a
person charged are, in all respects, similar to those provided
In this code for the arrest and commitment of a person charged
with a public offense committed in this state, except that an
exemplified copy of an indictment found, or other judicial
proceedings had against him in the state in which he is
charged to have committed the offense, may be received as
evidence before the magistrate.

49 Cal. 437: 51 Cal. 285.

When and for what time to be committed.

1551. If, from the examination, it appear that the accused
has committed the crime alleged, the magistrate, by warrant
reciting the accusation, must commit him to the proper custody
In his county, for such time, to be specified in the warrant,
as the magistrate may deem reasonable, to enable the arrest
of the fugitive under the warrant of the executive of this
state, on the requisition of the executive authority of the
state in which he committed the offense, unless he gives bail
as provided In the next section, or until he is legally dis-
charged.

His admission to baii.

1552. The magistrate may admit the person arrested to
ball by an undertaking with sufficient securities, and in such
sum as he deems proper, for his appearance before him at a
time specified in the undertaking, and for his surrender to
arrest upon the warrant of the governor of this state.

IMagistrate must notify district attorney of the arrest

1553. Immediately upon the arrest of the person charged,
the magistrate must give notice thereof to the district attorney
of the county.

Duty of the district attorney.

1554. The district attorney must Immediately thereafter give
notice to the executive authority of the state, or to the pros-
ecuting attorney or presiding judge of the court of the city
or county within the state having jurisdiction of the offense,
to the end that a demand may be made for the arrest and
surrender of the person charged.



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1655-1564 PENAL CODE. 762

Person arrested, when to be discharged.

1555. The person arrested must be discharged from custody
or ball, unless, before the expiration of the time designated
In the warrant or undertaking, he is arrested under the war-
rant of the governor of this state.

Magistrate to return his proceedings to Superior Court.

1556. The magistrate must return his proceedings to the
Superior Court of the county, which must thereupon inquire
into the cause of the arrest and detention of the person charged,
and If he Is in custody, or the time of his arrest has not
elapsed, it may discharge him from (Retention, or may order
his undertaking of b^l to be canceled, or may continue hlB
detention for a longe/^tim^ or readmit him to ball, to appear
and surrender himself wiCln^a^time specified in the undertak-
ing. [Amendment approvecf ^iMrU 12, 1880; Amendments



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 69 of 77)