CHAPTER XIX.

ARREST BY AN OFFICER UNDER A WARRANT, AND WITHOUT A WARRANT.

Definition of arrest.

SEC. 163. Arrest is the taking of a person into custody that he may be held to answer for a public offence.

SEC. 164. An arrest is made by an an actual restraint of the person of the defendant, or by his submission to the custody of the officer.

Officer to show his warrant.

SEC. 165. The officer must inform the defendant, that he acts under the authority of a warrant, and must also show the warrant if required.

When arrest may be made without warrant.

SEC. 166. A peace officer may without a warrant arrest a person:

First: For a public offence committed or attempted in his presence.

Second: When a public offence has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

SEC. 167. 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 the offence, or when he is pursued immediately after an escape.

SEC. 168. He may take before a magistrate any person who being engaged in the commission of a public offence is arrested by a by-stander and delivered to him.

Officer may break open door to arrest person who has violated certain sections of this act.

SEC. 169. To make an arrest, the officer may break open any outer or inner door or window of a dwelling house, if after notice of his office and person, he be refuse admittance.

SEC. 170. If after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.

SEC. 171. When a public offence is committed in the presence of a magistrate, he may by verbal order command any person to arrest the offender, and may thereupon proceed as if the defendant had been brought before him on a warrant.

SEC. 172. If a person arrested escape or be rescued, the person from whose custody he made his escape or was rescued, may immediately pursue and retake him at any time, and within any place in the state.

CHAPTER XX.

EXAMINATION BY A MAGISTRATE.

Defendant to be allowed counsel.

SEC. 173. When the defendant is brought before a magistrate upon arrest, either with or without warrant, on a charge af having committed a public offence, the magistrate must immediately inform him of the offence with which he is charged, and of his right to the aid of counsel in every stage of the proceedings. Magistrate must allow prisoner time to send for counsel.

SEC. 174. The magistrate must allow the defendant a reasonable time to send for counsel and if necessary must adjourn the examination for that purpose.

Examination to take place within a reasonable time.

SEC. 175. The magistrate immediately after the appearance of counsel, or if the defendant require the aid of counsel after waiting a reasonable time therefor must proceed to examine the case. Examination must be terminated at one session.

SEC. 176. The examination must be terminated at one session, unless the magistrate for good cause shown adjourn it.

SEC. 177. No examination can be adjourned for a longer period than thirty days.

If case is adjourned, defendant must be held to bail.

SEC. 178. If an adjournment be had for any cause the magistrate shall commit the defendant for examination, or require him to give ample security for his appearance at the time and place to which the examination is adjourned.

SEC. 179. If the defendant is charged with an offence punishable by death, he must be committed.

SEC. 180. If there is no jail in the county, the sheriff must retain the defendant in his custody until the time of examination. Complaint to be read, and witnesses subpænæd.

SEC. 181. On the examination, the magistrate must in the first place read to the defendant the depositions of the witnesses on the taking of the information, and if the defendant request it must summon the witnesses so examined, if they be within the county. He shall also issue subpoenas for any additional witnesses required by the prosecutor or the defendant.

SEC. 182. When the examination of the witnesses on the part of the Territory is closed, the magistrate must inform the defendant that it is his right to make a statement explaining the charge made against him, or that he may waive the same and such waiver cannot be used against him on the examination before the magistrate on trial.

Questions to be asked defendant.

SEC. 183. 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 think proper of the circumstances appearing in the testimony against you, and state any facts which you think may tend to your exculpation.

Answers of defendant must be written down.

SEC. 184. The answer of the defendant to each of the questions must be read to him as it is taken down, and he may thereupon correct or add to the same until it is made conformable to what he declares is the truth.

Answer to be signed.

SEC. 185. Such answer or statement of the defendant shall be signed by him, or if he refuse to sign it, his reasons for such refusal shall be stated by the magistrate.

SEC. 186. After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, may be sworn and examined.

Witness for defendant to be present.

SEC. 187. The witnesses on the part of the defendant must be present at the time he makes his statement.

Witnesses to be kept separate during examination.

SEC. 188. While a witness is under examination before the magistrate, he may exclude all others who have been examined. He may also cause the witnesses to be kept separate that they may not converse with each other until they are all examined. Testimony must be reduced to writing.

SEC. 189. The testimony given on the part of the Territory and the defendant, must be reduced to writing by the magistrate, or under his direction, and must set forth the age and place of residence of the witness, and be signed by him.

Magistrates' certificate.

SEC. 190. After the examination is closed the magistrate must make out and annex to the depositions and statement his certificate which must set forth in substance:

First: The time and place of the examination.

Second: That the defendant made and signed the annexed statement, or if after making a statement he refused to sign it, the reasons of making such refusal must be set forth.

Third: That the witnesses named in the depositions were duly sworn and subscribed the same in the presence of the magistrate.

SEC. 191. Such certificate must be signed by the magistrate with his official name.

Proceedings when testimony insufficient to hold to bail.

SEC. 192. If after hearing the testimony and statement, it appear to the magistrate, either that a public offence has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, he must order the defendant to be discharged, and such order must be endorsed on the depositions and signed by the magistrate to the following effect: There being no sufficient cause to believe the within named defendant guilty of the offence herein mentioned, I have ordered him to be discharged.

Holding to answer offence.

SEC. 193. If it appear from the examination, that a public offence 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 an order signed by him to the following effect: It appearing to me by the within depositions and statement (if any) that the offence therein mentioned (or any other offence, according to the fact) has been committed, and that there is sufficient cause to believe the within named defendant guilty thereof, I order that he be held to answer the same.

When committed to jail.

SEC. 194. If the offence is not bailable, the following word or words to the same effect must be added to the endorsement: "and that he be committed to the jail of the county of

To be committed when bail not given.

SEC. 195. If the offence is bailable, and bail be taken by the magistrate, the following words in substance must be added to the second endorsement above mentioned:-"and I have admitted him to bail to answer to the recognizance hereto annexed. If the defendant does not give bail, then the magistrate must add to the endorsement in substance as follows: "and that he be admitted to bail in the sum of (state amount) and committed to the jail of (name the county) until he gives such bail.

Of the commitment.

SEC. 196. If the magistrate order the defendant to be committed, he shall make out a warrant of 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 the officer be not present to a peace officer, who shall deliver the defendant in to the proper custody, together with the warrant of commitment, which warrant may be in the form following:

To the Sheriff of

THE TERRITORY OF JEFFERSON.

County.

An order having been this day made by me, that A-B (the name of the defendant) be held to answer upon a charge of (state the offence) you are commanded to receive him into your custody, and detain him in the jail of the county until he be legally discharged. Dated at Witnesses to enter into recognizance.

this

day of

18 .

SEC. 197. On holding the defendant to answer, the magistrate must take from each material witness examined by him on the part of the Territory, a written recognizance to the effect, that he will appear and testify at the court to which the defendant is bound to answer, or he will forfeit the sum of one thousand dollars. When sureties recognized.

SEC. 198. Whenever the magistrate is satisfied by oath, or otherwise, that there is reason to believe that any such witness will not fulfill his undertaking to appear and testify unless surety be required, he may order the witness to enter into a written recognizance with sureties, and in such sum as he may deem proper for

his appearance. SEC. 199.

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 proceeding section.

Witnesses who refuse to enter into recognizance, to be committed. SEC. 200. If a witness required to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the magistrate must commit him until he comply or be legally discharged.

Proceedings before a magistrate to be returned to District Court.

SEC. 201. When a magistrate has discharged a defendant, or held him to answer, he must return to the next district court of the county at or before its opening, on the first day of the term, the warrant and statement if any, and the deposition and all undertakings of bail for the appearance of defendant and witnesses taken by him.

CHAPTER XXI.

POWERS AND DUTY OF GRAND JURY.

Power and Duty of Grand Jury.

SEC. 202. The grand jury has power, and it is made its duty, to inquire into all indictable offences committed, or which may be