son, 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.

Defendant to be taken before magistrate without delay: See ante, §§ 825, 847.

Delay in taking before magistrate, a misdemeanor: See ante, $ 145.

Legislation § 849. Enacted February 14, 1872.

§ 850. Arrest by telegraph. A justice of the supreme court, or a judge of a superior court. may, by an indorsément 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 1880; Code Amdts. 1880, p. 33.]

Legislation § 850. 1. Enacted February 14, 1872 (based on Stats. 1862, p. 291, § 16), the first words of the section then reading, "A justice of the supreme court, district or county judge, or the judge of the municipal criminal court of San Francisco, may," thereafter the section reading as at present.

2. Amended by Code Amdts, 1880, p. 33.

§ 851. Same. 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.

Legislation § 851. Enacted February 14, 1872; based on Stats. 1862, p. 291, § 16.

CHAPTER VI.

Retaking After an Escape or Rescue.

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

§ 855. May break open door or window if admittance refused. § 854. May be at any time or in any place in the state. 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.

Assisting escapes: Ante, § 109.

Legislation § 854. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 186); in substance the same as Crim. Prac. Act, Stats. 1851. p. 227, § 144.

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

Breaking doors in making arrest: See ante, § 844. Legislation § 855. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 187); based on Crim. Prac. Act, Stats. 1851, p. 227, § 145, which read: "§ 145. To retake the person escaping or rescued the person pursuing may, after notice of his intention and refusal of admittance, break open any outer or inner door or window of a dwelling-house."

CHAPTER VII.

Examination of the Case, and Discharge of the Defendant, or Holding Him to Answer.

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

$859. Time to send and sending for counsel.

§ 860.

Examination, when to proceed.

§ 861.

When to be completed. Postponement.

§ 862.

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

$ 863. Form of commitment.

§ 864. $865. § 866.

§ 867.

Depositions to be read on examination and subpoenas issued.
Examination of witnesses to be in presence of defendant, etc.
Examination of defendant's witnesses.

Exclusion and separation of witnesses.

$ 868.

§ 869.

Persons excluded at examination before magistrate.
Testimony, how taken and authenticated.

§ 870.

Depositions to be kept. Transcript for defendant.

§ 876.

§ 877.

$878.

§ 879.

§ 880. § 881.

§ 882.

Commitment, how made and to whom delivered.
Form of commitment.

Undertaking of witnesses to appear, when and how taken.
Security for the appearance of witnesses, when and how re-

quired.

Infants and married women may be required to give security. Witnesses to be committed on refusal to give security for their appearance.

Witness unable to give security may be conditionally examined.

§ 883. Magistrate to return depositions, etc., to the court.

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

Legislation § 858. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 188); based on Crim. Prac. Act, Stats. 1851, p. 227, § 146, which had the words "and before any further proceedings are had," at end of section.

§ 859. Time to send and sending for counsel. 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 peaceofficer 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: Const. 1879, art. i, § 13; see ante, § 825.

Legislation § 859. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 189); in substance the same as Crim. Prac. Act, Stats. 1851, p. 228, § 147.

§ 860. Examination, when to proceed. 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.

Legislation § 860. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 190); based on Crim. Prac. Act, Stats. 1851, p. 228, § 148, which read: "§ 148. The magistrate shall immediately after the appearance of counsel, or if defendant require the aid of counsel after waiting a reasonable time therefor, proceed to examine the case."

§ 861. When to be completed. Postponement. 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.

Legislation § 861. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 191); based on Crim. Prac. Act, Stats. 1851, p. 228, § 149, which read: "§ 149. The examination must be completed at one session unless the magistrate for a good cause shown adjourn it. The adjournment 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."

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

Legislation § 862. Enacted-February 14, 1872 (N. Y. Code Crim. Proc., § 192); based on Crim. Prac. Act, Stats. 1851, p. 228, § 150, which read: "§ 150. If an adjournment be had for any cause the magistrate shall commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this act, as security for his appearance at the time to which the examination is adjourned."

§ 863. Form of commitment. 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.

Commitment, how made: See post, §§ 872, 876.

Form of commitment: See post, §§ 872, 873, 877.

Legislation § 863. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 193); in substance the same as Crim. Prac. Act, Stats. 1851, p. 228, § 151.

§ 864. Depositions to be read on examination and subpoenas issued. 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.

Legislation § 864. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 194); based on Crim. Prac. Act, Stats. 1851, p. 228, § 152, which read: "§ 152. At the examination the magistrate shall in the first place read to the defendant the depositions of the witnesses examined on the taking of the information. He shall also issue subpoenas for any witnesses required by the prosecutor or the defendant, as provided in section five hundred and forty-eight."

§ 865. Examination of witnesses to be in presence of defendant, etc. The witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.

Legislation § 865. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 195); in substance the same as Crim. Prac. Act, Stats. 1851, p. 228, § 153.

§ 866. Examination of defendant's witnesses. 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 produce witnesses: See ante, § 686.

Legislation § 866. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 229, § 159, which read: "§ 159. After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, shall be sworn and examined."

§ 867. Exclusion and separation of witnesses. 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. Who may be present: See post, § 868.

Legislation § 867. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 202); based on Crim. Prac. Act, Stats. 1851, p. 229, § 160, the first part of which read: "§ 160. The witnesses produced on the part either of the people or of the defendant, shall not be present at the examination of the defendant, and," thereafter the section reading as the present code section.

§ 868. Persons excluded at examination before magistrate. 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; provided, however, that when the prosecuting witness is a female she shall be entitled at all times to the attendance of a person of her own sex. [Amendment approved 1915; Stats. 1915, p. 772.]

Exclusion of witnesses: See ante, § 867.

Legislation § 868. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 203); in substance the same as Crim. Prac. Act, Stats. 1851, p. 229, § 161.

2. Amended by Stats. 1915, p. 772. The change consisted in the addition of the proviso.

§ 869. Testimony, how taken and authenticated. 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 shorthand reporter. The deposition or testimony of the witness must be authenticated in the following form:

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

Second. 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 shorthand, the answer or answers of the witness need not be read to him.