Arrest Before Indictment, by Whom, How and When Made. arrested on pursuit; and if he is refused admittance, after notice of his intention, and the person to be arrested has committed a felony, he may break open an outer or inner door or window of a dwelling house. 6275. (5217) (4268) (4671) (4001) (452) Must take person arrested before magistrate.-It is the duty of any private person, having arrested another for the commission of any public offense, to take him without unnecessary delay before a magistrate, or to deliver him to some one of the officers specified in section 6207 (5209), who must forthwith take him before a magistrate. (Clay's Digest, p. 431, § 27.) Carey's case, 76 Ala. 78. 236, § 7. 6276. When sheriff must notify governor of arrest.-When- Feb. 20, ever any person is arrested, charged with a capital felony, and 1899, p. there is no court having jurisdiction thereof in session, it shall be the duty of the sheriff or the officer making the arrest or having the custody of such prisoner, to notify the governor at once of the arrest of such person, and the officer failing to give such notice as soon as possible after the arrest of such prisoner, is guilty of a misdemeanor. 6277. (5218) (4269) (4672) (4002) (453) Rearrest after escape or rescue.—If a person arrested escapes or is rescued, he may be immediately pursued by the officer or person in whose custody he was, and retaken at any time, and in any place in the state; and if such officer or person is refused admittance, after notice of his intention, he may break open an outer or inner door or window of a dwelling house, in order to retake the person so escaping or rescued. If defendant escapes he may be pursued by constable and rearrested under warrant without new process.-Murphy v. State, 55 Ala. 252; Floyd's case, 79 Ala. 39. 6278. (5219) (4270) (4655) (3985) (436) Warrant executed, where; when written indorsement required.-A warrant of arrest, when issued by a judge of the supreme or circuit court, or by a chancellor, or by a judge of any court of record, may be executed in any county in the state; but if issued by any other magistrate, it must be executed in the county in which it was issued, unless the defendant is in another county; and when the defendant is in another county, it may be executed therein, on a written indorsement on the warrant by a magistrate of that county, signed by him, to the following effect: "This warrant may be executed in county." Justice of the peace no authority to issue warrant for arrest of person to answer charge in another county.-Woodall v. McMillan, 38 Ala. 622. 6279. (5220) (4271) (4656) (3986) (437) Authority of officer to pursue and arrest in another county.-Any lawful officer, (r.c.c.) Arrest Before Indictment, by Whom, How and When Made. having a warrant of arrest to execute, may pursue the defendant into another county, and, on obtaining an indorsement on the warrant by a magistrate of that county, signed by such magistrate, to the following effect: "A. B. is authorized to execute this warrant in county," may summon persons to assist him in making the arrest, and exercise the same authority as in his own county. (Clay's Digest, p. 447, § 17.) Statute construed; does not mean that execution of warrant must be begun in the county of the arresting officer, while accused is there, and followed up in the event of his fleeing to another county.Coleman's case, 63 Ala. 93. 6280. (5221) (4272) (4657) (3987) (438) Indorsement on warrant by magistrate. The indorsement of the magistrate, according to the provisions of the last two sections, must not be made unless he is satisfied from his own knowledge, or from the oral or written statement, on oath, of some credible persons, proving the handwriting of the magistrate issuing the warrant, in the one case, and in the other, that the person in pursuit is an officer authorized to make the arrest in the county in which the warrant is issued. (Clay's Digest, p. 448, § 18.) 6281. (5222) (4273) (4658) (3988) (439) Magistrate not liable on indorsement.-No magistrate, having complied with the provisions of the last section, is liable to any indictment or action for making such indorsement, although it may afterwards appear that such warrant was illegally issued, or that the person was not authorized to execute the same. (Clay's Digest, p. 448, § 19.) 6282. (5223) (4274) (4663) (3993) (444) When defendant must be carried before magistrate issuing warrant.-When the warrant of arrest is executed in any other county than the one in which it is issued and is for a felony, or when for a misdemeanor, and the defendant is not bailed according to the provisions of section 7589 (5224) and 7590 (5225), he must be brought before the magistrate issuing the warrant, or if such magistrate is unable to attend, or his office is vacant, before some other magistrate of the county in which such warrant issued; and the warrant, with a proper return thereof, must be delivered to such magistrate. (Clay's Digest, p. 448, § 21.) Duty of magistrate to inquire into the offense and to discharge, bail, or commit without bail.—Osborn v. State, 125 Ala. 106 (27 So. 758). Authority to call in other magistrates.-Boynton v. State, 77 Ala. 29. Territorial jurisdiction of justices.-Boynton v. State, 77 Ala. 29; Ex parte Davis, 95 Ala. 9 (11 Sọ. 308). Arrest After Indictment, Etc.-Issue and Execution of Writ. ARTICLE 2. ARREST AFTER INDICTMENT AND PROCEEDINGS THEREUNDER. 6283. 6283. (5251) (4395) (4825) (4152) Defendant, if present, arrested without process.-After an indictment has been returned by the grand jury, the court may order any defendant who is present, and who has not been arrested, to be taken into custody without process; and when the defendant has given bail prior to the return of an indictment against him for a capital offense, the court may, in its discretion, likewise order him into custody. Cases which do not call for the interposition of court under this section; failure of court to enter order not availing to the defendent.-Ex parte Robinson, 108 Ala. 161 (18 So. 729). 6284. (5252) (4396) (4826) (4153) (601) Writ of arrest issued by the clerk, solicitor, or judge.—A writ of arrest must be issued by the clerk forthwith after the finding of the indictment against each defendant who is not in actual custody, or who has not been bailed, or whose undertaking of bail has ' been declared forfeited; or it may be issued without an order of court, either in term time or vacation, by the solicitor of the circuit, or by any circuit judge. But if the defendant is in actual custody, he shall be held by virtue of the indictment, and no writ of arrest need be issued. An officer charged with the duty of executing process is bound to do so unless it is void on its face, or the court issues it without jurisdiction.-Spear v. State, 120 Ala. 351 (25 So. 46). Capias not void because indictment was not indorsed "filed" as required by statute.-Spear v. State, 120 Ala. 351 (25 So. 46). Form of capias, sufficiency of.-Spear v. State, 120 Ala. 351 (25 So. 46); Ex parte Robinson, 108 Ala. 161 (18 So. 729). 20-AC-VOL. III Issue and Execution of Writ. 6285. (5253) (4397) (4827) (4154) (602) Form of writ of arrest for felony.-When the indictment is for a felony, the writ of arrest may be in the following form: State of Alabama, County. To any sheriff of the state: An indictment having been found against A. B., at the term, 19—, of the offense of court of county, for the (describing the offense so as to show that it is a felony), you are, therefore, commanded forthwith to arrest the said defendant and commit him to jail; and that you return this writ according to law. Dated this (Signed) Clerk of the circuit court of Wilson's case, 99 Ala. 194 (13 So. 427). 19—. C. D., County. 6286. (5254) (4398) (4828) (4155) (603) Form of same for misdemeanor.-When the indictment is for a misdemeanor, the writ of arrest may be in the same form, except that after the words, "commit him to jail," must be added the words, "unless he give bail to answer such indictment.” 6287. (5255) (4399) (4839) (4168) (616) Alias and pluries writs. As many writs of arrest may be issued as necessary; and after any forfeiture is taken, another writ of the arrest may be issued without an order. 6288. (5256) (4400) (4829) (4156) (604) Writ of arrest executed by sheriff, etc.-A writ of arrest may be executed by the sheriff of any county in the state, or by his deputy; and such officers have the same powers and authority, in relation to arrest under a writ of arrest, as are by law conferred upon them in executing a warrant of arrest. 6289. Warrants, attachments, or other process issued during term time and to be executed during term time, how and where executed. The sheriff or his deputy, or any person specially deputized by a court of record, may execute all warrants of arrest, all attachments or subpoenas for witnesses or other process issued by a court of record during term time which is to be executed during term time in any adjoining county to that county in which court is then in session. 6290. (5257) (4401) (4833) (4162) (610) On commitment, copy of writ delivered to jailer.-When any defendant is committed to jail under a writ of arrest, the sheriff must retain or deliver to the jailer a copy of the writ; which copy is as good authority for the detention of the defendant as the original 6291. (5258) (4402) (4834) (4163) (611) Return of writ executed with undertaking of bail; when and how made.-All writs of arrest, with the undertaking of bail when given, must be returned by the sheriff to the clerk of the court from which they were issued, with the proper return thereon indorsed; if the writ is executed, the return must be made within five days after service; but if executed out of the county in which the indictment was found, the return may be made by depositing the writ in the postoffice, within five days after service, in a sealed envelope, postage prepaid, directed to the clerk of the court, at the courthouse of his county, with the title of the case, and the character of the process indorsed on the envelope. 6292. (5259) (4403) (4835) (4164) (612) Return of writ not executed, when and how made.-When any writ of arrest is not executed, it must be returned by the sheriff to the clerk of the court from which it was issued by the third day of such court, or before the case is called in order, and when the return is made by the sheriff of any other county than that in which the indictment was found, it may be made by mail, as prescribed by the preceding section. 6293. (5260) (4404) (4836) (4165) (613) Sheriff attached and fined for failure to make return; certificate of postmaster as evidence. Any sheriff who fails to comply with the provisions of the last two sections may be compelled to make the return by attachment, and also forfeits to the state, for the use of the county, fifty dollars, which may be recovered with costs against him and his sureties, or any of them, having three days' notice thereof, by motion in the court in which the indictment was found; and on the trial of such motion, the certificate of the postmaster is presumptive evidence of the deposit of the writ of arrest, the superscription, and indorsement on the envelope. 6294. (5261) (4405) (4837) (4166) (614) Returns by mail taken from office by clerk, etc.; expense paid by county.—The clerk of the court must take from the postoffice all packages addressed to him, which are indorsed according to the provisions of section 6291 (5258), and the expense of the same must be paid by the county. CROSS REFERENCES. ARRESTS (Criminal Code) .....6267-6294, 6351, 6352 ARRESTS; REFUSING TO AID OFFICER (Criminal Code) ...7708-7711 |