magistrate who issued the warrant, or some other magistrate of the same county, as provided in section eight hundred and twenty-four.

One arrested for a felony, to procure bail, must be taken before the magistrate who issued the warrant, or some other magistrate, in the same county-54 Cal. 103.

822. If the offense charged is a misdemeanor, and the defendant is arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit the defendant to bail, and take bail from him accordingly.

See 54 Cal. 103. In fixing the amount of bail, the sole purpose should be to cause the appearance of accused to answer the charge-54 Cal. 75. Admission to bail, in all but capital cases, is a right of accused-19 Cal. 541. See Const. Prov. ante, page 15.

823. On taking the bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and must, without delay, deliver the warrant and undertaking to the clerk of the court at which the defendant is required to appear.

824. If, on the admission of the defendant to bail, the bail is not forthwith given, the officer must take the defendant before the magistrate who issued the warrant, or, in case of his absence or inability to act, before the nearest or most accessible magistrate in the same county, and must at the same time deliver to the magistrate the warrant with his return thereon indorsed and subscribed by him.

See 54 Cal. 103.

825. The defendant must in all cases be taken before the magistrate without unnecessary delay, and any attorney-at-law entitled to practice in courts of record of California, may, at the request of the prisoner after such arrest, visit the person so arrested. [In effect April 9th, 1880.]

826. If the defendant is brought before a magistrate other than the one who issued the warrant, the depositions

on which the warrant was granted must be sent to that magistrate, or, if they cannot be procured, the prosecutor and his witnesses must be summoned to give their testimony anew.

Rights of prisoner.-The only rights that he can exact are, that the affidavits shall be transmitted, or that the prosecutor and his witnesses be summoned to testify anew-19 Cal. 135.

827. When an information is laid before a magistrate of the commission of a public offense triable in another county of the State, but showing that the defendant is in the county where the information is laid, the same proceedings must be had as prescribed in this chapter, except that the warrant must require the defendant to be taken before the nearest or most accessible magistrate of the county in which the offense is triable, and the depositions of the informant or prosecutor, and of the witnesses who may have been produced, must be delivered by the magistrate to the officer to whom the warrant is delivered.

828. The officer who executes the warrant must take the defendant before the nearest or most accessible magistrate of the county in which the offense is triable, and must deliver to him the depositions and the warrant, with his return indorsed thereon, and the magistrate must then proceed in the same manner as upon a warrant issued by himself.

829. If the offense charged in the warrant issued pursuant to section eight hundred and twenty-seven is a misdemeanor, the officer must, upon being required by the defendant, take him before a magistrate of the county in which the warrant was issued, who must admit the defendant to bail, and immediately transmit the warrant, depositions, and undertaking, to the clerk of the court in which the defendant is required to appear.

To procure bail, the prisoner must be taken before the magistrate who issued the warrant, or some other magistrate of the same county -54 Cal. 103. See ante, § 822, note.

CHAPTER V.

ARREST, BY WHOM AND HOW MADE.

§ 834. Arrest defined. By whom made.

§ 835.

§ 836.

§ 837. Arrests by private persons.

How an arrest is made and what restraint allowed.
Arrests by peace officers.

§ 839.

§ 840.

Persons making arrest may summon assistance.
When the arrest may be made.

§ 846.

§ 847.

§ 848.

Weapons may be taken from persons arrested.
Duty of a private person who has made an arrest.
Duty of officer arresting with warrant.

§ 849.

Person arrested without a warrant to be taken before a magis. trate. Information to be filed.

§ 850. Arrest by telegraph.

§ 851. Same.

834. An arrest 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.

Arrest, when illegal.—An arrest will not be avoided by mere clerical or formal errors in the warrant-98 Mass. 4; see 49 Barb. 89; 8 Rich. 17. A warrant may be void as to the parties, but voidable only as to the officer-21 N. H. 262; 1 Lead. C. C. 200. When absolutely void, the officer cannot excuse himself-20 Vt. 321; as where it is dated on Sunday-13 Mass. 324; or where it has no seal-1 Hayw. 471; 36 Me. 366; 5 Ired. 72; 1 East P. C. ch. 5, § 58; but a wafer or scroll is sufficient-34 Me. 210; 9 Watts, 311; 49 Mo. 188; 9 Jur. 442; 7 Q. B. 232.

Validity of arrest.-To make an arrest valid, the officer must be engaged in the execution of a duty-13 Cox C. C. 202. Where an arrest Is made beyond the jurisdiction of the magistrate who issued the warrant, it is illegal-65 N. C. 327; 79 id. 605; or outside of the district of the officer-1 Conn. 40; 4 id. 107; 7 id. 456; 4 Mass. 232. Where a fugitive was arrested in another State, though the arrest is illegal, it is not ground for his discharge on habeas corpus-18 Pa. St. 37. See 4 Parker Cr. R. 253. Where the offense charged in the warrant is not a subject of arrest, it is illegal-20 Alb. L. J. 215. Where a person has been discharged by a magistrate, an officer cannot re-arrest him without

a new warrant-30 Barb. 300, disapproving 6 Hill, 349; but an officer may re-arrest a person after voluntarily releasing him-9 Met. 259.

835. 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.

Arrest. how made.-No manual touching is necessary-18 Ga. 392; it is sufficient if the party be within the power of the officer and submits to the arrest-1 Wend. 215; 20 Ga. 371; 18 N. H. 198; 1 Car. & P. 153; Moody & M. 244; contra, 2 N. H. 318; Harp. (S. C.) 453; Bald. 239; 3 Har. (Del.) 416; id. 568. It is the duty of the party to submit-4 Allen, N. B. 440. To inform defendant that he is arrested, and to lock the door, is sufficient-Cas. t. Hardw. 284; or to inform him, and touch him only with the finger-1 Salk. 79.

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

3. 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.

Subd. 1. Offenses committed in presence of officer-5 Har. (Del.) 505; 19 Ohio St. 248; 2 Hill, (S. C.) 619; 8 Serg. & R. 47; 71 Ill. 73; 17 How. Pr. 100; 3 Wend. 384; 9 Car. & P. 474; 5 El. & B. 188; or even after, if danger has not ceased-7 Cox C. C. 389; and see 71 III. 78; limited, 36 N. H. 246.

Subd. 2. For felony-12 Cush. 246; id. 615; 71 . 78; Cald. 291; 1 Lead. C. C. 195; and such misdemeanors as cannot be stopped or redressed without immediate arrest-3 Fost. & F. 859; 4 id. 155; but for cruelty to animals, he cannot arrest without a warrant-5 Lans. 84; 2 Daly, 220.

Subd. 3. Probable cause.-An officer may arrest on probable ground of suspicion, and without a warrant-30 Ga. 430; 14 Gray, 65; 6 Humph. 53; 1 Moody C. C. 634; see 46 Ga. 86; and to justify him, it will not be necessary to establish the guilt of the party-49 Ind. 56; 1 Am. Cr. R. 60; so, of a constable-1 Wheel. C. C. 137. A constable may arrest on reasonable cause of suspicion, or for breach of peace in his presence-67 Pa. St. 30; 8 Serg. & R. 47. So, a peace officer, for reasonable cause, may arrest for felony-49 Ind. 56; 6 Humph. 53; 5 Cush. 281.

He cannot arrest for a crime proved or suspected, unless it be a felony -12 Cush. 246; id. 615. Contra, 5 Har. (Del.) 505.

Subd. 4. On charge of felony.-A peace officer, on reasonable cause, on a charge of felony, can arrest without a warrant, but a private person cannot-1 Doug. 359; 1 Lead. C. C. 194; but he is not bound to arrest merely on representations that he is a thief-5 City H. Rec. 4. Mere manner, in a man accused of crime, is not probable cause-37 Mich. 299. Refusal to arrest-see ante, § 142. Warrant to be directed to, and executed by, officer-see ante, § 816. Who are peace officersante, $817. To what to be directed-ante, §§ 818, 819. Duty on arrest$849.

837. A private person may arrest another

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

2. When the person arrested has committed a felony, although not in his presence.

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

Subd. 1. Private persons.-It is the duty of all persons to use all lawful means to arrest one committing a breach of the peace-4 City H. Rec. 111; or an affray-1 Root, 66; but he is not justified without a warrant, unless the affray is still continuing, or there is reasonable ground to apprehend its renewal-10 Clark & F. 28; S. C. 1 Lead. C. C. 177. But a private person cannot, of his own authority, after an affray or breach of the peace-11 Johns. 486. For misdemeanors, after their commission, an arrest can only be made on a warrant-3 Parker Cr. R.

249.

Subd. 2. For felony.-A private person may arrest, without warrant, one who has committed a felony-1 Wheel. C. C. 101; 3 Wend. 350; 11 Johns. 486; 3 Parker Cr. R. 249; 17 How. Pr. 100; 12 Ga. 318; or, on suspicion, with good reason, where a crime has been actually committed-40 N. Y. 463; 3 Wend. 350; but it must be a felony which may be tried in the State-51 Barb. 91; as for an escape-48 N. H. 377.

Subd. 3. Reasonable cause-see 40 N. Y. 463; 3 Wend. 350. May arrest on probable cause-32 N. J. L. 70; 3 Wend. 350; 8 Serg. & R. 47; 6 Binn. 316; 66 Ind. 464; 2 Dev. 58; 3 Jones, (N. C.) 434; but to justify, an offense must be in fact committed-40 N. Y. 453; 61 Pa. St. 352; 54 Barb. 490; 2 Selw. N. P. 943.

838. 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.

Magistrate may, on his own view, and without a warrant, arrest a party for a breach of the peace-5 City H. Rec. 95.

839. Any person making an arrest may orally summon as many persons as he deems necessary to aid him herein.