1.

his office.

2. 3.

By or upon an officer of justice, while in the execution of the duties of

Riotously.

With an intent to commit a felony. [C. L. § 5237.

Cal. Pen. C. 1377.

5063. Id. By permission of court. Bar. If the party injured appears before the court in which the trial is to be had at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein and entered on the minutes. The order shall be a bar to another prosecution for the same offense. [C. L. § 5238.

Cal. Pen. C. ? 1378.

Bar generally, 22 4488, 4490, 4794, 4795.

5064. No offense to be compromised except as herein provided. No public offense shall be compromised, nor shall any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this chapter. [C. L. § 5239.

Cal. Pen. C. 1379.

Compounding or concealing crimes, penalty, ?? 4075, 4145.

CHAPTER 52.

DISMISSAL OF ACTION.

5065. Dismissal for failure to prosecute. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases:

1. When a person has been held to answer for a public offense, if an information is not filed nor an indictment found against him at the next term of the court at which he is held to answer.

2. If a defendant whose trial has not been postponed upon his application, is not brought to trial at the next term of the court in which the information or indictment is triable, after it is filed or found. [C. L. § 5240.

Cal. Pen. C. 1382*.

Dismissal for failure to file new information or

find new indictment after first has been set aside, 24775.

5066. Action continued from term to term. Discharge. If the defendant is not charged nor tried as provided in the last section, and sufficient reason therefor is shown, the court may order the action to be continued from term to term, and in the meantime may discharge the defendant from custody on his own undertaking of bail for his appearance to answer the charge at the time to which the action shall be continued. [C. L. § 5241.

Cal. Pen. C. 1383*.

This section not mandatory. Ex parte Lowrie, 4 U. 177; 7 P. 493.

5067. Dismissal discharges defendant. If the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom; or if admitted to bail, his bail shall be exonerated, or money deposited instead of bail, must be refunded to him. [C. L. § 5242.

Cal. Pen. C. 1384.

5068. Dismissal on motion of court or county attorney. Order. The court may, either of its own motion or upon the application of the county attorney, and in furtherance of justice, order an action, information, or indictment

to be dismissed.

The reasons for the dismissal must be set forth in an order [C. L. § 5243.

entered upon the minutes.

Cal. Pen. C. 1385.

Discontinuance of prosecution after examination and commitment, 2 4693.

5069. Id. County attorney not to abandon prosecution otherwise. No prosecuting attorney can discontinue or abandon a prosecution for a public offense, except as provided in the last section. [C. L. § 5244*.

Cal. Pen. C. 2 1386*.

5070. Dismissal a bar except in case of felony. An order for the dismissal of an action as provided in this chapter, shall be a bar to any other prosecution for the same offense, if it is a misdemeanor; but shall not be a bar if the offense is a felony. [C. L. § 5245.

Cal. Pen, C. 1387.

Bar generally, ?? 4488, 4490, 4794, 4795.

CHAPTER 53.

PROCEEDINGS AGAINST CORPORATIONS.

5071. Complaint against corporation. Requisites of summons. Upon a complaint against a corporation, the magistrate must issue a summons, signed by him, with his name of office, requiring the corporation to appear before him at a specified time and place to answer the charge, the time to be not less than ten days after the issuing of the summons. [C. L. § 5246.

Cal. Pen. C. 1390*.

5072. Id. Form of summons. The summons must be substantially in the following form:

STATE OF UTAH,

COUNTY OF

}

The state of Utah to the (naming the corporation):

You are hereby summoned to appear before me at (naming the place) on (specifying the day and hour), to answer a charge made against you upon the complaint of A B for (designating the offense generally). Dated at

day of

[C. L. § 5247.

Cal. Pen. C. 1391*.

this

18-, G H, justice of the peace (or as the case may be).

5073. Id. Service of summons. The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president or other head of the corporation, or to the secretary, cashier, or managing agent thereof. [C. L. § 5248.

Cal. Pen. C. 1392.

5074. Preliminary examination of corporation. At the time appointed in the summons the magistrate must proceed to investigate the charge in the same manner as in the case of a natural person, so far as those proceedings are applicable. [C. L. § 5249.

Cal. Pen. C. 1393.

After

5075. Id. Certificate of discharge, or of probable cause. hearing the evidence, the magistrate must certify upon the complaint, either that there is or is not sufficient cause to believe the corporation guilty of the offense charged, and must return the complaint, the certificate and the other documents, if any, as prescribed in section forty-six hundred and eighty-six. [C. L. § 5250*.

Cal. Pen. C. 2 1394*.

5076. Prosecution by information or indictment. If the magistrate's return shows that there is sufficient cause to believe the corporation guilty of the offense charged, the county attorney or grand jury must proceed thereon as in the case of a natural person held to answer. [C. L. § 5251*.

Cal. Pen. C. 1395*.

5077. Id. Summons. Same proceedings as against a person. Whenever an information is filed or indictment found against a corporation, it must be summoned to appear as provided in the code of civil procedure. The corporation may appear by counsel. If it does not appear, a plea of not guilty must be entered. In either case, proceedings thereupon must be had as if the defendant were a natural person. [C. L. § 5252*.

Cal. Pen. C. 1396*.

5078. Execution against corporation for fine, etc. Whenever a fine and costs, or either, shall be imposed upon a corporation on conviction, judg ment therefor may be executed by the sheriff of the county out of the real and personal property of such corporation in the same manner as a judgment in a civil action. [C. L. § 5253*.

Cal. Pen. C. ? 1397*.

Penalty for felony by corporation, § 4064.

CHAPTER 54.

ENTITLING AFFIDAVITS.

5079. Affidavit defectively entitled is valid when. It shall not be necessary to entitle an affidavit or deposition in the action, whether taken before or after information or indictment, or upon an appeal; but if made without a title, or with an erroneous title, it shall be as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refers to the proceeding, information, indictment, or appeal in which it is made. [C. L. § 5254.

Cal. Pen. C. 1401.

CHAPTER 55.

ERRORS AND MISTAKES.

5080. Informalities not prejudicial do not invalidate. Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, shall render it invalid, unless it shall have actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right. [C. L. § 5255.

Cal. Pen. C. ? 1404.

Similar section, civil procedure, 3008. Supreme court shall disregard errors, etc., not affecting sub

stantial rights, 22 4968, 4975. Statutes to be liberally construed, 2489, 4052.

CHAPTER 56.

SEARCH WARRANTS.

5081. Search warrant defined. A search warrant is an order in writing, in the name of the state, signed by a magistrate and directed to a peace

officer, commanding him to search for personal property and bring it before the magistrate. [C. L. § 5402.

Cal. Pen. C. 1523.

5082. Id. Grounds for issuance. It may be issued upon any of the following grounds:

1. When the property was stolen or embezzled; in which case it may be taken on the warrant from any place in which it is concealed, or from any person in whose possession it may be.

2. When it was used as the means of committing a felony; in which case may be taken on the warrant from the place in which it is concealed, or from any person in whose possession it may be.

it

3. When it is in the possession of any person with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered; in which case it may be taken on the warrant from such person, or from any place occupied by him or under his control, or from the possession of the person to whom he may have so delivered it. [C. L. § 5403.

Cal. Pen. C. 1524*.

5083. To issue but upon probable cause. Oath. Description. A search warrant shall not issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized. [C. L. § 5404*.

Cal. Pen. C. 1525*.

This section follows Con. art. 1, sec. 14.

5084. Examination of complainant and witnesses. Depositions. The magistrate must, before issuing the warrant, examine on oath the complainant, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them. [C. L. § 5405.

Cal. Pen. C. 2 1526.

5085. Id. Requisites of depositions. The depositions must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist. [C. L. § 5406.

Cal. Pen. C. 1527.

5086. Warrant issued if magistrate satisfied. Contents. If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate. [C. L. § 5407.

Cal. Pen. C. 1528.

5087. Form of search warrant. The warrant must be in substantially the following form:

STATE OF UTAH,

COUNTY OF

The state of Utah, to any sheriff, constable, marshal, or policeman in the county of

:

Proof, by affidavit, having been this day made before me by (naming every person whose affidavit has been taken) that (stating the grounds of the application, or, if the affidavit is not positive, that there is probable cause for believing) that (stating the ground of the application in the same manner), you are therefore commanded in the daytime (or at any time of the day or night, as the case may be,) to make immediate search on the person of or in the house situated -, (describing it or any other place to be searched, with reasonable particularity, as the case may be) for the following property: (describing it with

reasonable particularity); and, if you find the same or any part thereof, to bring it forthwith before me at (stating the place). Given under my hand and dated this

[C. L. § 5408.

Cal. Pen. C. ? 1529*.

day of —, A. D., 18—. Justice of the peace (or as the case may be).

5088. Warrant served by officer mentioned therein. A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution. [C. L. § 5409.

Cal. Pen. C. 1530.

5089. Officer may break door, etc., to serve. The officer may break open any outer or inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance. [C. L. § 5410.

Cal. Pen. C. 1531.

5090. Id. To liberate self or assistant. He may break open any outer or inner door or window of a house, 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. [C. L. § 5411.

Cal. Pen. C. 1532.

5091. Direction to serve in daytime. When at any time. The magistrate must insert a direction in the warrant that it be served in the daytime, unless the affidavits are 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. [C. L. § 5412.

Cal. Pen. C. 1533.

5092. Warrant void after ten days. A search warrant must be executed and returned to the magistrate who issued it within ten days after its date; after the expiration of this time the warrant, unless executed, shall be void. [C. L. § 5413.

Cal. Pen. C. 1534.

5093. Officer to 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. [C. L. § 5414.

Cal. Pen. C. 1535.

5094. Disposal of property taken. When the property is delivered to the magistrate, he must, if it was stolen or embezzled, dispose of it or its proceeds, as provided for the disposal of stolen or embezzled property in chapter fifty-eight of this code. The magistrate may, if such stolen or embezzled property is a living animal or of a perishable nature, order a sale thereof. If it was taken on a warrant issued on the grounds stated in the second and third subdivisions of section five thousand and eighty-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 taken is triable. [C. L. § 5415.

Cal. Pen. C. 1536*.

5095. Officer's return of warrant and inventory. The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken, made publicly or in the presence of the person from whose possession it was taken and of the applicant for the warrant, if they