BOOK II.

OF THE MODE OF PROSECUTING OFFENCES.

TITLE I.

OF ARREST AND BAIL.

CHAPTER I.

Definitions and general principles, relative to the subject of this title.

Art. 131. A complaint is the allegation made to a proper officer, that some person, whether known or unknown, has been guilty of a designated offence.

Art. 132. No complaint can have a legal effect, unless it be supported by such evidence as shall show that an act which constitutes an offence has been committed, and renders it certain or probable, that it was committed by some person named or described in the complaint. It is then called an ACCUSATION.

Art. 133. The evidence mentioned in the last preceding article may be taken without the knowledge of the party accused, or the effect of the law might be evaded by his escape. But he cannot be condemned on such evidence; he must have an opportunity of explaining or contradicting it before the judges who are finally to decide on his innocence or guilt. This investigation is called the TRIAL. It necessarily requires some delay, but public justice requires that during this interval, the person of the accused should be secured, in order that he may undergo the penalty of the law, if he be found guilty. This is affected by an ARREST.

Art. 134. As it would be oppressive in most cases to deprive the accused of his liberty before trial and conviction, if he can give a sufficient pledge for his appearance at the trial, the law restores him to his liberty on his giving such pledge. This pledge is called BAIL

Art. 135. There are cases in which the accused is bailable of right, others in which it is discretionary with the judge to admit to bail, and some in which no bail can be taken. The rules relative to these several

distinctions are laid down in a subsequent chapter of this title, and in the chapter of the preceding book relative to writs of habeas corpus.

CHAPTER II.

Of the mode of making a complaint and accusation, and of ordering

an arrest.

SECTION I.

Of complaints and accusations, and who may receive them.

Art. 136. Any judge of any court, any mayor or justice of the peace, of the state, is authorized to receive complaints and accusations for offences; to issue warrants, order arrests, make commitments, and take bail in the manner directed by this code. They are designated under the general term, MAGISTRATE.

Art. 137. Any person, even those incapable of giving testimony, may make complaint to a magistrate.

Art. 138. When a complaint shall be made to a magistrate, he shall reduce the declaration of the complainant to writing, and if he be a person capable of giving testimony, shall administer an oath, that the said declaration contains the truth, and shall cause it to be signed in his presence, and shall then proceed to take such other testimony as shall be offered him to prove the offence, or designate the offender, causing each declaration to be SIGNED by the declarant, and attested on oath.

Art. 139. If it appear probable to the magistrate than any other persons have knowledge of any material fact or circumstance relative to the complaint, it is his duty to summon and examine them on oath, touching the matter of the complaint.

SECTION II.

Of warrants of arrest, and citation.

Art. 140. When a magistrate from the complaint or accuation, or other evidence taken before him, is convinced that an offence has been committed, and has reason to believe, that any person who can be sufficiently designated by name or description, has committed such offence, it shall be his duty to issue a WARRANT OF ARREST, or CITATION, according to the discretion hereinafter vested in him.

Art. 141. When an offence is committed in the presence of a magistrate, he may issue a warrant of arrest, although no complaint or accusation be brought before him; but in such case the warrant must be returnable before some other magistrate, and the magistrate signing the same, must reduce his own testimony to writing, and prior to any

commitment or holding to bail, attest the same before such other magistrate on oath.

Art. 142. A warrant of arrest is an order in writing, directing a person, accused or suspected of having committed an offence, to be brought before a magistrate or court of examination.

Art. 143. This warrant may be issued by the governor of the state, by any court having any criminal jurisdiction, or any magistrate.

Art. 144. It must be directed to the person who is to execute it, either by name, or by his official designation. In the latter case it may be directed specially to a particular officer, or generally to all officers of the same description: when so generally directed, any officer of that description, to whom it is delivered, must execute it.

It must describe the party suspected or accused, by name, or by such other designation, as may sufficiently distinguish him, and it must contain an order to arrest and bring him before some court or magistrate for examination. The offence of which the person to be arrested is accused or suspected, must be set forth, either by its legal appellation, or it must be substantially described.

It must be signed by the magistrate, or by the clerk of the court which issues it.

Art. 145. Warrants of arrest may be directed to a sheriff or his deputy, or to a constable. These are called officers of justice, and they are bound to execute any legal warrant directed to them. Warrants may also be directed to individuals, who are not such officers, but they are under no obligation to execute such warrant unless they have undertaken so to do; in which case they are bound by the same rules, and are subject to the same penalties for neglect or misconduct, as officers are.

SECTION III.

In what cases an arrest may be made without warrant.

Art. 146. Where a CRIME, or a BREACH OF THE PEACE has been committed, and the offender shall endeavour to make his escape, if there is a good reason to believe that he will effect it, before a warrant can be obtained, he may be arrested by virtue of a verbal order of any magistrate, or without such order, if no magistrate be present.

Art. 147. Any one in the act of committing a crime, may be arrested by any person present, without a warrant.

Art. 148. Whenever a CRIME is committed, and the offenders are unknown, and any person shall be found near the place where the crime was committed, either endeavouring to conceal himself, or endeavouring to escape, or under such other circumstances as justify a REASONABLE SUSPICION of his being the offender, such person may be arrested without warrant.

Art. 149. In cities and towns, even in cases where it is not certain that an offence has been committed, it is the duty of officers of justice and persons employed in such cities and towns as watchmen, without warrant to arrest and detain for examination, such persons as may be

found at night, under such circumstances as justify a reasonable suspicion that they have committed or intended to commit an offence.

SECTION IV.

Of citations.

Art. 150. In cases of misdemeanour, when no danger appears of the defendant's absconding, the magistrate, instead of a warrant of arrest, may issue a citation in the form provided for by this code.

Art. 151. The citation may be served, either by leaving a copy with some person above the age of puberty who shall be found at the dwelling house of the defendant, or by delivering such copy personally to him.

Art. 152. If the defendant do not appear at the time and place of the return of the citation, when it has been duly served, the magistrate shall issue a warrant of arrest.

CHAPTER III.

Of the duty and powers of officers of justice and others in making

arrests.

Art. 153. At or before the time of making an arrest, the person who makes it must declare that he is an officer of justice, if such be the case. If he have a warrant, he must show it if required; or if he make the arrest without warrant in any of the cases in which it is authorized by law, he must give the party arrested clearly to understand, for what cause he undertakes to make the arrest, and must require him to submit and accompany him to the magistrate.

Art. 154. The arrest is complete as soon as such notice is given as is required by the last preceding article; provided, the party intended to be arrested, from his situation and other circumstances, may reasonably be supposed to have heard the said notice, and to have known that it was addressed to him.

Art. 155. In all cases where the person arrested refuses to submit to the arrest, or to proceed to the magistrate for examination, or attempts to escape, such degree of force may be used as is necessary to compel his appearance. But when he submits to the arrest, and neither attempts to escape nor make resistance, PERSONAL VIOLENCE shall not be used, nor shall BLOWS, STRIPES or WOUNDS be inflicted in any case, as a means of enforcing submission to the arrest, except so far as is hereinafter specially provided.

Art. 156. He who makes an arrest, may take from the party arrested all OFFENSIVE WEAPONS which he may have about his person, and must deliver them to the magistrate who takes the examination, to be disposed of according to law.

Art. 157. No person who shall kill or wound another, intentionally

or unintentionally, by the use of such means as would probably produce death, shall be justified or excused for such killing or wounding, although he prove that the party killed or wounded endeavoured to escape from an arrest; but if the party arrested or attempted to be arrested, shall, after receiving the notice provided for in the first article of this chapter, make resistance with DEADLY WEAPONS, the person making the arrest may also use such weapons, where they are necessary for his defence and to repel any forcible opposition to the execution of the arrest; and in such case, if wounds or death ensue, the party making the arrest shall be justified. This article does not extend to prisoners breaking out, or endeavouring to break out of prison when lawfully arrested; in such case, the person having custody of the prisoner, and others employed by him, may lawfully use offensive weapons to prevent the breach of the prison.

Art. 158. If, after a lawful arrest has been made, any one shall, by force, rescue or attempt the rescue of the prisoner, or before the arrest has been made, shall by force attempt to prevent it from being made, the person having the prisoner in custody, or authorized to make the arrest, and others who may be lawfully aiding him, may resist such force, and in doing so may use deadly weapons, whenever it may be necessary to prevent this rescue, or overcome resistance to the arrest. The provisions of this article extend to all cases where a person is in lawful custody.

Art. 159. In all cases of arrest for examination, the person making the same must, without unnecessary delay, conduct the party arrested before the court or magistrate by whom the warrant was issued, or, if the arrest was made without warrant, before the nearest magistrate in the parish.

Art. 160. Until the person arrested can be brought before the court or magistrate, and during the examination he remains in the custody of the person making the arrest, or of some officer of justice appointed by the magistrate or court.

Art 161. Watchmen in cities or towns, and officers of justice having charge of prisoners any where, are authorized to receive persons arrested for examination, when necessary, for their safe custody during the night or at other times when they cannot be brought before the court or magistrate for examination, and to deliver them again to the party who made the arrest; but in all such cases, the person having charge of the prison, shall take a copy of the warrant if the arrest is made by warrant, or of a declaration of the cause of the arrest in writing, signed by the party making the arrest, if it be one made without

warrant.

Art. 162. If the magistrate who shall issue any warrant of arrest, shall be absent at the time when it is returned, or unable from whatever cause, to examine the prisoner, the person, in whose custody he is, must conduct him before some other magistrate in the same parish, and in such case the complaint and affidavit on which the warrant was granted must be sent to the magistrate before whom the prisoner was taken, or if they cannot be procured, the complainant and witnesses must be summoned to give their testimony anew.

Art. 163. Warrants of arrest may be executed in any parish of the state, provided the person authorized to execute such warrant shall procure the allowance of some magistrate in such parish, which he is re