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4518. Party may protect person, family, and property. Resistance sufficient to prevent the offense may be made by the party about to be injured: 1. To prevent an offense against his person, or his family, or some member thereof.

2. To prevent an illegal attempt by force to take or injure property in his lawful possession. [C. L. § 4792.

Cal. Pen. C. 693.

4519. When third party may assist. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. [C. L. § 4793.

Cal. Pen. C. 694.

CHAPTER 3.

INTERVENTION OF OFFICERS.

4520. Officers may prevent public offenses, how. Public offenses may be prevented by the intervention of the officers of justice:

1. By requiring security to keep the peace.

2. By forming a police in cities, towns, or counties and by requiring their attendance in exposed places.

3. By suppressing riots. [C. L. § 4794.

Cal. Pen. C. 2 697*.

4521. When persons justified in assisting officers. When the officers of justice are authorized to act in the prevention of public offenses, other persons who, by their command, act in their aid, are justified in so doing. [C. L. § 4795.

Cal. Pen. C. 698.

Justifiable homicide, ?? 4167, 4168.

CHAPTER 4.

SECURITY TO KEEP THE PEACE.

4522. Complaint of threatened injury. A complaint may be made before any magistrate that a person has threatened to commit an offense against the person or property of another. [C. L. § 4796*.

Cal. Pen. C. 2 701*.

4523. Examination of complainant and witnesses. The magistrate must examine on oath the complainant and any witnesses he may produce, and may take their depositions in writing. [C. L. § 4797*.

Cal. Pen. C. 2 702*.

4524. Complaint defined. A complaint within the meaning of this chapter is a statement in writing of the jurisdictional facts, clearly specifying the threatened offense, and subscribed and sworn to by the complainant.

N. Dak. (1895) ? 7765*.

4525. Warrant of arrest issued when. Form. If it appears that there is just reason to fear the commission of the offense threatened, the magistrate may issue a warrant directed generally to any peace officer, reciting the substance of the complaint and commanding the officer forthwith to arrest the person complained of and bring him before such magistrate, or, in case of his absence or inability to act, before the nearest and most accessible magistrate of the county. [C. L. § 4798*.

Cal. Pen. C. 703*.

4526. Procedure if defendant taken before different magistrate. When the person arrested is taken before a magistrate other than the one who issued the warrant, the peace officer who executed the warrant must deliver it to the magistrate with his return indorsed thereon. The complaint, and depositions, if any, on which the warrant was issued, must be sent to the magistrate before whom the person arrested is taken.

Iowa, McClain's An. C. ? 5498*.

4527. Change of venue as in preliminary examinations. When the person complained of is brought before the magistrate, a change of venue may be had as in preliminary examinations.

Iowa, McClain's An. C. 2 5499*.

Change of venue, ? 4660.

4528. The hearing. Testimony, when reduced to writing. At the time set for the hearing of the charge, the magistrate must take the testimony in relation thereto, and the evidence, on demand of the person complained of. must be reduced to writing, and subscribed by the witnesses. [C. L. § 4799*.

Cal. Pen. C. 704*.

4529. Discharge. When complainant to pay costs. If it appears that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged, and the complainant may be ordered to pay the costs of the proceedings if the magistrate regards the complaint as unfounded and frivolous, and judgment may be entered and execution issued therefor. [C. L. § 4800*.

Cal. Pen. C. 705*. Iowa, McClain's An. C. 2 5500*.

4530. Security to keep peace required when. If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding three thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to keep the peace toward the people of this state, and particularly toward the complainant. The undertaking shall be valid and binding for six months and may, upon the renewal of the complaint, be extended for a longer period, or a new undertaking may be required. [C. L. § 4801.

Cal. Pen. C. ? 706*.

Bonds to keep the peace, and peace warrants, are

not designed to protect men in doing unlawful acts. Johnston v. Meaghr, 14 U. 426; 47 P. 861.

4531. Discharge on giving security. Commitment otherwise. If the undertaking required by the last section is given, the party complained of must be discharged. If he does not give it, the magistrate must commit him to prison, specifying in the warrant of commitment the requirement to give security, the amount thereof, and the omission to give the same. [C. L. § 4802.

Cal. Pen. C. ? 707.

4532. Discharge after commitment, on giving security. If the person complained of is committed for not giving the undertaking required, he may be discharged by any magistrate upon giving the same. [C. L. § 4803.

Cal. Pen. C. 708.

4533. Undertaking to be filed in district court. The undertaking must be filed by the magistrate in the office of the clerk of the district court of the county. [C. L. § 4804*.

Cal. Pen. C. 2709.

4534. Assault in presence of magistrate. Security. A person who, in the presence of a court or magistrate, assaults or threatens to assault another or to commit an offense against his person or property, or who contends with another with angry words, may be ordered by the court or magistrate to give security, as in this chapter provided, and if he refuses to do so, may be committed as provided in section forty-five hundred and thirty-one. [C. L. § 4805.

Cal. Pen. C. 2710.

4535. Undertaking broken by conviction. Upon the conviction of the person complained against of a breach of the peace, the undertaking is broken. [C. L. § 4806.

Cal. Pen. C. 2 711.

4536.

Undertaking prosecuted by county attorney. Upon the county attorney producing evidence of such conviction to the district court where the undertaking was filed, the court must order the undertaking to be prosecuted, and the county attorney must thereupon commence an action upon it in the name of the state. [C. L. § 4807*.

Cal. Pen. C. ? 712*.

4537. Id. Record of conviction conclusive evidence. In such action, the offense stated in the record of conviction must be alleged as a breach of the undertaking, and such record is conclusive evidence thereof. [C. L. § 4808.

Cal. Pen. C. 713.

4538. Security required only as herein prescribed. Security to keep the peace, or to be of good behavior, cannot be required except as prescribed in this chapter. [C. L. § 4809.

Cal. Pen. C. 714.

CHAPTER 5.

POLICE AND THEIR ATTENDANCE.

4539. Police governed by special statutes. The organization and regulation of the police, in the cities, towns, and counties of this state, are governed by special statutes. [C. L. § 4810.

Cal. Pen. C. ? 719*.

4540. Ordering police to preserve peace at public meeting. The mayor or other officer having the direction of the police of a city, town, or county must order a sufficient force to preserve the peace, to attend any public meeting, when he is satisfied that a breach of the peace is reasonably apprehended. [C. L. § 4811.

Cal. Pen. C. 720*.

CHAPTER 6.

SUPPRESSION OF RIOTS.

4541. Officer may command assistance to execute process. When a sheriff or other public officer authorized to execute process finds, or has reason to apprehend, that resistance will be made to the execution of the process, he may command as many male inhabitants of his county as he may think proper to assist him in overcoming the resistance, and, if necessary, in seizing, arresting, and confining the persons resisting and their aiders and abettors. [C. L. § 4812. ing to assist officers, penalty, 2 4144. Authority of persons assisting officer, 4521.

Cal. Pen. C. ?723.

Riot and unlawful assembly, 22 4301-4307. Refus

4542. Persons resisting process to be reported to the court. The officer must certify to the court from which the process issued, the names of the persons resisting and their aiders and abettors, to the end that they may be proceeded against for their contempt of court. [C. L. § 4813.

Cal. Pen. C. 724.

4543. Officer to command rioters to disperse. When any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies, the officials governing the precinct or city, or the justices of the peace and constables thereof, or any of them, must among the persons assembled, or as near to them as possible, and command them, in the name of the state, immediately to disperse. [C. L. § 4815.

Cal. Pen. C. 2726.

go

4544. Id. Arrest on refusal to disperse. If the persons assembled do not immediately disperse, such magistrates and officers must arrest them, and to that end may command the aid of all persons present or within the county. [C. L. § 4816.

Cal. Pen. C. 2727.

4545. Person refusing to assist officer, etc., deemed a rioter. If a person present, being commanded by any of the magistrates or officers mentioned in the preceding section to aid or assist in seizing and securing such rioters or persons so unlawfully assembled, or in suppressing such riot or unlawful assembly, refuses or neglects to obey such command, or, when required by such magistrate or officer to depart from the place, refuses or neglects so to do, he shall be deemed one of the rioters or persons unlawfully assembled, and may be prosecuted and punished accordingly.

Mass. p. 1163, 22.

CHAPTER 7.

IMPEACHMENTS.

4546. Officers liable to impeachment. The governor and other state and judicial officers, except justices of the peace, shall be liable to impeachment for high crimes and misdemeanors, or malfeasance in office.

Mont. Pen. C. 1500.

Provisions of constitution relating to impeachments, Con. art. 6, secs. 16–21.

4547. Impeachment by house by two-thirds vote. Trial. The house of representatives shall have the sole power of impeachment, but in order to impeach, two-thirds of all the members elected must vote therefor. All impeachments shall be tried by the senate sitting for that purpose, and the senators shall be upon oath or affirmation to do justice according to law and the evidence.

Mont. Pen. C. 1501*.

4548. Two-thirds of senators to convict. Chief justice to preside, when. When the governor is on trial, the chief justice of the supreme court shall preside, and, in case he is disqualified or unable to act, the senate shall select some other judge of that court. No person shall be convicted without a concurrence of two-thirds of the senators elected.

Mont. Pen. C. 1501*.

4549. House to elect managers to conduct proceedings. Articles. All impeachments must be by resolution adopted, originated in, and conducted by managers elected by the house of representatives, who must prepare articles of impeachment, present them at the bar of the senate, and prosecute the same. Cal. Pen. C. 738; Mont. Pen. C. 2 1502.

When an

4550. Articles of impeachment delivered to senate. officer is impeached by the house of representatives, the articles of impeachment must be delivered to the president of the senate.

Cal. Pen. C. 739; Mont. Pen. C. ? 1503.

4551. House to have notice of hearing. Defendant served with articles. The senate must assign a day for the hearing of the impeachment, and inform the house of representatives thereof. The president of the senate must cause a copy of the articles of impeachment, with a notice to appear and answer the same at the time and place appointed, to be served on the defendant not less than ten days before the day fixed for the hearing.

Cal. Pen. C. 740; Mont. Pen. C. 1504.

4552. Service how made upon defendant. The service must be made upon the defendant personally, or if he cannot, upon diligent inquiry, be found within the state, the senate, upon proof of that fact, may order publication to be made, in such manner as it may deem proper, of a notice requiring him to appear at a specified time and place and answer the articles of impeachment.

Cal. Pen. C. 741; Mont. Pen. C. 1505.

4553. Proof of service if defendant does not appear. Trial. If the defendant does not appear, the senate, upon proof of service or publication, as provided in the last two sections, may, of its own motion or for cause shown, assign another day for hearing the impeachment, or may proceed, in the absence of the defendant, to trial and judgment.

Cal. Pen. C. 742; Mont. Pen. C. ? 1506.

4554. Counsel for defendant, when appointed. If the defendant appears, and is unable to procure the assistance of counsel, it is the duty of the president of the senate to appoint some suitable person to assist him in his defense; if the defendant is served by publication and fails to appear, it is the duty of the president of the senate to appoint some person or counsel to appear in his behalf and make defense for him.

Mont. Pen. C. 1507.

4555. Demurrer to be in writing. Plea of not guilty. When the defendant appears, he may in writing object to the sufficiency of the articles of impeachment, or he may answer the same by an oral plea of not guilty, which plea must be entered upon the journal, and puts in issue every material allegation of the articles of impeachment.

Cal. Pen. C. 743; Mont. Pen. C. 2 1508.

4556. Procedure when demurrer overruled. If the objection to the sufficiency of the articles of impeachment is not sustained by a majority of the members of the senate elected, the defendant must be ordered forthwith to answer the articles of impeachment. If he then pleads guilty, the senate must render judgment of conviction against him. If he pleads not guilty, or refuses to plead, the senate must, at such time as it may appoint, proceed to try the impeachment.

Cal. Pen. C. 744; Mont. Pen. C. ? 1509.

4557. Trial. Senators to be sworn. At the time and place appointed, and before the senate proceeds to act on the impeachment, the secretary must administer to the president of the senate, and the president of the senate to each of the members of the senate then present, an oath or affirmation to do justice according to law and the evidence; and no member of the senate can act or vote upon the impeachment, or upon any question arising thereon, without having taken such oath or affirmation.

Cal. Pen. C. 745; Mont. Pen. C. ? 1510*.

4558. Two-thirds vote necessary to convict. The defendant shall not be convicted on impeachment without the concurrence of two-thirds of the members elected, voting by ayes and noes, and if two-thirds of the members elected do not concur in a conviction, he must be acquitted.

Cal. Pen. C. 746; Mont. Pen. C. 1511.

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