The officer, in the execution of a search warrant, after a demand and refusal to open the outer or other door of the house, may break it open. Bell v. Clapp, 10 Johns. 263. - § 800. May break open door or window to liberate person acting in his aid, or for his own liberation. — He may break open any outer or inner door or window of a building 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. See Bell v. Clapp, 10 Johns. 263. § 801. When warrant may be served in the night-time, and direction therefor.—The magistrate must insert a direction in the warrant that it be served in the day-time, unless the affidavits be 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. § 802. Within what time warrant must be executed and returned.-A search warrant must be executed, and returned to the magistrate by whom it was issued, if issued in the city and county of New York, within five days after its date, and if in any other county, within ten days. After the expiration of those times respectively, the warrant, unless executed, is void. 803. Officer to give receipt for property taken.-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. 804. Property, when delivered to magistrate how disposed of.-When the property is delivered to the magistrate, he must, if it was stolen or embezzled, dispose of it as provided in sections six hundred and eighty-seven to six hundred and eightynine, both inclusive. If it were taken on a warrant issued on the grounds stated in the second and third subdivisions of section seven hundred and ninety-two, 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 was taken, is triable. 3906. Remom of WESTEND and delivery to magistrate of vetary of property t-The der forthwith 2017 the mer. De arstira od bel ma to him a written Caventory of the po pery aim, made pitnią, ir in the presere of E SHTR ATOR Dressessing it is taken, and of the appwant for the vama i mey be present, verified by the Lots of the Even and aken befire the magistrate, to the following efter: 11 de Beer by whom this warrant ww sxemed 3 swear that the afore Erectory contains a true and dented wront of al the property taken by me on the 3904. Magistrate to deliver copy of inventory to the person from whose possession property is taken, and to applicant for warrant - The magistrate must thereupon if required deliver a orgy of the inventory to the person from whose possessice the property was taken, and to the applicant for the warrant 3507. If grounds for warrant controverted, magistrate to take testimony.- If the grounds on which the warrant was leened be ocntroverted, the magistrate must proceed to take testimony in relation thereto. 808. Testimony, how taken and authenticated. The testimony given by each witness must be reduced to writing and authenticated in the manner prescribed in section two hundred. 8809. Property, when to be restored to person from whom it was taken. If it appear that the property taken is not the same as that prescribed 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. 810. Depositions, search warrant, etc., to be returned to county court or city court having jurisdiction, etc.- The magistrate must annex together the depositions, the search warrant and return, and the inventory, and return them to the next county court of the county or city court, having power to inquire into the offense in respect to which the search warrant was issued, by the intervention of a grand jury, at or before its opening on the first day. In effect, as amended, Jan. 1, 1896; Laws 1895, chap. 880. § 811. Maliciously and without probable cause procuring search warrant, a misdemeanor. A person who maliciously and without probable cause, procures a search warrant to be issued and executed, is guilty of a inisdemeanor. 812. Peace officer, exceeding his authority. - A peace officer who, in executing a search warrant, willfully exceeds his authority, or exercises it with unnecessary severity, is guilty of a misdemeanor. See Penal Code, § 120. 813. Person charged with felony supposed to have a dangerous weapon, etc.- When a person charged with felony is supposed by the magistrate before whom he is brought, to have upon his person a dangerous weapon, or any thing 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 the order of the court in which the defendant may be tried. TITLE III. OF THE OUTLAWRY OF PERSONS CONVICTED OF TREASON. SECTION 814. When application for outlawry may be made. 815. On what proof to be made. 816. Order that the defendant appear to receive judgment, or be outlawed. 817. Publication of order. 818. Judgment on appearance of defendant, or on his not appearing. 819. Effect of the judgment. 820. Filing judgment roll, and transcripts thereof. 821. Judgment roll, of what to consist. 822. Appeal may be at any time taken, by defendant, from judgment 823. Appeal, how taken, and proceedings thereon. 824. Effect of reversal. 825 Defendant may be arrested to receive judgment, notwithstand ing outlawry. 826. No other proceeding for outlawry in criminal cases allowed. 8814. When application for outlawry may be made.When, upon a bench warrant issued for the apprehension of a person who has pleaded guilty, or against whom a verdict has been rendered upon an indictment for treason, it is duly returned that the defendant cannot be found, the district attorney of the county may apply to the court in which the conviction was had, for judgment of outlawry. § 815. On what proof to be made. The application must be founded upon the return of the bench warrant, and upon proof, by affidavit, that the defendant has escaped, and on diligent search cannot be found within the county. § 816. Order that the defendant appear to receive judgment, or be outlawed. The court, upon being satisfied that the defendant has escaped, and cannot, upon diligent search, be found in the county, must make an order that he appear on the first day of the next term, to receive judgment upon the conviction or be outlawed. § 817. Publication of order. The order must be immediately published, once a week for six successive weeks, in a newspaper published in the county, and in the state paper. The expense of the publication is a county charge. - § 818. Judgment on appearance of defendant, or on his not appearing. If the defendant appear, judgment must be rendered against him upon the conviction. If he do not appear, the court, upon proof of the due publication of the order, must render judgment that the defendant be outlawed, and that all his civil rights be forfeited. 8819. Effect of the judgment. The defendant is thereupon deemed civilly dead, and forfeits to the people of this state, during his life-time, and no longer, all freehold estate in real property, of which he was seized in his own right, at the time of committing the treason, or at any time thereafter, and all his personal property. See Penal Code, § 710. § 820. Filing judgment roll, and transcripts thereof. — Upon a judgment of outlawry, the judgment roll must be made up, and filed with the clerk of the county in which the conviction was had, and docketed with the same effect as in a civil action. A transcript thereof may also be filed and docketed, with the like effect, in any other county. § 821. Judgment roll, of what to consist. — The judgment roll consists of the several matters prescribed in section four hundred and eighty-five, except the fifth subdivision; to which must be annexed a certified copy of the order to appear for judgment, the affidavits proving its publication, and a certified copy of the judgment of outlawry. § 822. Appeal may be at any time taken by defendant from judgment. An appeal may be taken by the defendant, at any time, from a judgment of outlawry. § 823. Appeal, how taken, and proceedings thereon. The appeal may be taken in person or by counsel, in the same manner, and the proceedings thereon are the same as upon an appeal from a judgment of conviction on an indictment. § 824. Effect of reversal. — If the judgment be reversed on appeal, the defendant is restored to his civil rights. § 825. Defendant may be arrested to receive judgment, notwithstanding outlawry. - Notwithstanding judgment of outlawry against the defendant, he may be arrested at any time thereafter to receive judgment upon the conviction. 826. No other proceeding for outlawry in criminal cases allowed. No other proceeding for the outlawry of the defendant in a criminal action can be had than that provided in this title. TITLE IV. OF PROCEEDINGS AGAINST FUGITIVES FROM JUSTICE. CHAPTER I. Fugitives from another state or territory, into this state. |