and to be prevented from conversing with each other until they are all examined.

SEC. 161. The magistrate shall 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.

[SEC. 162, repealed by act of May 5, 1855.]

SEC. 163. After hearing the proofs and the statement of the defendant, if he have made one, if it appear either that a public offence has not been committed, or there is no sufficient cause to believe the defendant guilty thereof, the magistrate shall order the defendant to be discharged, by an endorsement on the depositions and statement signed by him, to the following effect: "There being no sufficient cause to believe the within-named A. B. guilty of the offence within mentioned, I order him to be discharged."

SEC. 164. If, however, it appear from the examination that a public offence has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate shall in like manner endorse on the depositions and statement an order signed by him, to the following effect: "It appearing to me by the within depositions [and statement if any] that the offence therein mentioned [or any other offence, according to the fact, stating generally the nature thereof] has been committed, and that there is sufficient cause to believe the within-named A. B. guilty thereof, I order that he be held to answer the same."

SEC. 165. If the offence be not bailable, the following words, or words to the same effect, shall be added to the endorsement: "And that he be committed to the sheriff of the county of

SEC. 166. If the offence be bailable and bail be taken by the magistrate, the following words, or words to the same effect, shall be added to the endorsement: "And I have admitted him to bail to answer by the recognizance hereto annexed."

SEC. 167. If the offence be bailable and the defendant be admitted to bail, but bail have not been taken, the following words, or words to the same effect, shall be added to the endorsement mentioned in section one hundred and sixty-four: "And that he be admitted to bail, in the sum of dollars, and be com

mitted to the sheriff of the county of

such bail."

until he gives

SEC. 168. If the magistrate order the defendant to be committed, as provided in sections one hundred and sixty-five and one hundred and sixty-seven, he shall make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or, if that officer be not present, to a peace officer, who shall deliver the defendant. into the proper custody, together with the commitment.

SEC. 169. The commitment must be to the following effect: [see Forms.]

SEC. 170. On holding the defendant to answer, the magistrate shall take from each of the material witnesses examined before him, on the part of the people, a written recognizance, to the effect that he will appear and testify at the court to which the depositions and statements are to be sent, or that he will forfeit the sum of five hundred dollars.

SEC. 171. Whenever the magistrate shall be satisfied by proof, on oath, that there is reason to believe that any such witness will not fulfil his recognizance to appear and testify, unless security be required, he may order the witness to enter into a written recognizance, with such sureties and in such sum as he may deem meet, for his appearance, as specified in the last section.

SEC. 172. Infants and married women, who are material witnesses against the defendant, may in like manner be required to procure sureties for their appearance, as provided in the last section.

SEC. 173. If a witness, required to enter into recognizance to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the magistrate shall commit him to prison until he comply or be legally discharged.

SEO. 174. When, however, it shall satisfactorily appear by the examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people; such examination shall be by question and answer, and shall be conducted in the same manner as the examination before a committing magistrate is required by this act to be conducted, and the witness shall thereupon be discharged.

SEC. 175. The last section shall not apply to the prosecutor or to an accomplice in the commission of the offence charged.

SEC. 176. When a magistrate has discharged a defendant, or has held him to answer, as provided in sections one hundred and sixty-four and one hundred and sixty-five, he shall return without delay to the clerk of the court at which the defendant is required to appear, the warrant, if any, the depositions, the statement of the defendant, if he have made one, and all recognizance of bail or for the appearance of witnesses, taken by him.

Magistrates, including justices of the peace, are required to aid in preserving the public peace, and in suppressing riots.'

If two or more persons assemble for the purpose of disturbing the public peace or committing any unlawful act, and do not disperse on being desired or commanded so to do by a judge, justice of the peace, sheriff, coroner, constable, or other public officer, the persons so offending shall, on conviction, be severally fined, in any sum not exceeding five hundred dollars, and imprisoned in the county jail not more than six months."

If a magistrate or officer, having notice of an unlawful or riotous assembly, as provided in section forty, neglect to proceed to the place of assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the same, and arresting the offenders, he shall be deemed guilty of a misdemeanor.'

If the persons so assembled and commanded to disperse do not immediately disperse, any two of the magistrates or officers before mentioned may command the aid of a sufficient number of persons, and may proceed in such manner as in their judgment is necessary, to disperse the assembly and arrest the offenders.'

Every male person above eighteen years of age who shall neglect or refuse to join the posse comitatus, or power of the county, by neglecting or refusing to aid and assist in taking or arresting any person or persons against whom there may be issued any process, or by neglecting to aid and assist in retaking any person or persons who, after being arrested or confined, may have escaped from such arrest or imprisonment, or by neglecting or refusing to aid and assist in preventing any breach of the peace,

1 Wood's Dig. art. 1404-1417.

2 id. 1974.

id. 1411, 1412.

or the commission of any criminal offence, being thereto lawfully required by any sheriff, deputy sheriff, coroner, constable, judge, or justice of the peace, or other officer concerned in the administration of justice, shall, upon conviction, be fined in any sum not less than fifty nor more than one thousand dollars.'

If any judge, justice of the peace, sheriff, or other officer, bound to preserve the public peace, shall have knowledge of an intention on the part of any two persons to fight with any deadly weapon or weapons, and such officer shall not use and exert his official authority to arrest the parties and prevent the deed, every such officer shall be fined in a sum not exceeding one thousand dollars.'

If complaint under oath, in proper form, be made to a magistrate, from which it appears that there is just reason to fear the commission of an offence threatened against the person or property of another, he shall cause such person to be arrested and brought before him, and a full examination had. If it appear that there is just reason to fear the commission of the offence alleged, the party may be required to give bond not exceeding five thousand dollars, with one or more sufficient sureties, to keep the peace toward the people of the state of California, and particularly toward the complainant, which bond shall be valid for six months, and may, upon removal of the complaint, be extended for a longer period, or a new bond may be required. If such bond be not given the magistrate shall commit the party to prison. The bond must be filed by the magistrate in the office of the clerk of the county.'

The powers of a magistrate in a criminal matter may be exercised on Sundays and other non-judicial days.*

FORMS.

Complaint to obtain Surety of the Peace.

State of California, Justices' Court. County of

Personally appeared before me, this 2d day of June, 1859, Hawkins Smith, who deposes and says, that on the 30th day of May, 1859, one Joaquin Alvarez, in said county, did threaten to

1 Wood's Dig. art. 1989.

id. 1980.

3 id. 1891-1897.

4 i. 704.

beat, bruise and wound [or, kill, or commit other offence, as the case may be], and that he has just cause to fear, and does fear that the said Joaquin Alvarez will beat, bruise and wound [or, &c.] him, this deponent, all of which is contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the people of the state of California. Wherefore deponent prays that a warrant may be issued for the arrest of said Joaquin Alvarez, and that he may be brought before a magistrate, and dealt with acording to law.

HAWKINS SMITH. Sworn and subscribed before me, this 2d day of June, 1859, A. B., Justice of the Peace.

Peace Warrant.

State of California,}

County of

ss: Justices' Court, 1st Township.

The people of the state of California, to the sheriff of the county of , or any constable, marshal or policeman

in this state:

A complaint, upon oath, having been this day laid before me, by Hawkins Smith, that Joaquin Alvarez has threatened to beat, bruise and wound the said Hawkins Smith, you are therefore commanded forthwith to arrest the above-named Joaquin Alvarez, and bring him before me, at or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county.

Dated at my office, this 2d day of June, A. D. 1859.

A. B., Justice of the Peace.

Commitment on foregoing Complaint.

State of California, Į SS:

County of

To the sheriff of said county, greeting:

Whereas, H. S. this day made complaint to me in writing, on oath, that Joaquin Alvarez, on the 30th day of May last past, threatened to, &c. [as in the complaint]: And whereas, it appearing to me, upon the examination of the said complainant, and E. F., and O. P., witnesses, duly made on oath, reduced to writing, and subscribed by them, that there was just reason to fear the commission of the said offence by the said Joaquin Alvarez; and he being brought before me on my warrant, was required to enter into recognizance in the sum of $500, with sufficient surety to keep the peace toward the people of this state, and particularly toward the said complainant, for the period of six months. And the said Joaquin Alvarez having refused [or, neglected] to