Complaint, Depositions, and Warrant of Arrest. CHAPTER 275. PRELIMINARY PROCEEDINGS. 7584-7615. ARTICLE 1. COMPLAINT, DEPOSITIONS, AND WARRANT OF ARREST. 7584-7588. ARTICLE 2. DISCHARGE ON BAIL BEFORE OR WITHOUT PRELIMINARY EXAMI NATION. 7589-7592. ARTICLE 3. PRELIMINARY EXAMINATION AND ITS INCIDENTS. 7593-7615. ARTICLE 1. COMPLAINT, DEPOSITIONS, AND WARRANT OF ARREST. 7584-7588. SECTION. 7584. Definition of complaint. 7586. What depositions must state. SECTION. 7587. Warrant of arrest to issue, if probable cause shown. 7588. Form and contents of warrant; to whom directed and by whom executed. 7584. (5204) (4255) (4647) (3977) (428) Definition of complaint. The complaint is an allegation, made before a proper magistrate, that a person has been guilty of a designated public offense. This and three succeeding sections apply only to preliminary proceedings before committing magistrates, and not to criminal prosecutions before the county court, and justices of the peace.-Sale's case, 68 Ala. 530. Technical accuracy not required in preliminary proceedings; what sufficient.-Brown's case, 63 Ala. 97; Rhodes v. King, 52 Ala. 272. Jurisdiction of justices and notaries ex officio justices extends to the entire county in preliminary proceedings.-Matthew's case, 96 Ala. 62 (11 So. 203); Ex parte Davis, 95 Ala. 9 (11 So. 308); Boynton's case, 77 Ala. 29. 7585. (5205) (4256) (4648) (3978) (429) Plaintiff examined on oath; depositions reduced to writing, and subscribed.— Upon a complaint being made to any one of the magistrates specified in section 7519 (5161) that such offense has, in the opinion of the complainant, been committed, the magistrate must examine the complainant, and such witnesses as he may propose, on oath, take their depositions in writing, and cause them to be subscribed by the persons making them. Note. The examination of complainant and his witnesses and the taking of the depositions should precede the issuance of the warrant. It is to be regretted that the practice has grown up in this state for the magistrate to issue a warrant for the gravest of offenses upon the affidavit of the affiant alone, that he has probable cause for believing a designated offense has been committed and that the person charged is guilty thereof, simply following the form for instituting proscutions for misdemeanors in county court or before justices of the peace. It will be seen from an examination of this article that it was never intended that the warrant should issue upon the mere affidavit of affiant. It will be noticed by § 7587 (5207) that it is the magistrate who must Complaint, Depositions, and Warrant of Arrest. be reasonably satisfied from the depositions and who must have reasonable ground to believe that the defendant is guilty before issuing the warrant, while the practice is, that the justice has no knowledge or information at all but issues the warrant upon a mere affidavit that the affiant has probable cause for believing and does believe, etc. A notary public ex officio justice of the peace has the same territorial as the justice of the peace.-Matthews v. State, 96 Ala. 62 (11 So. 203). What prosecutions may be begun by affidavit and warrant of arrest.-Sale v. State, 68 Ala. 530. Duty of magistrate discussed.-Marks v. Hastings, 101 Ala. 165 (13 So. 297). The policy of the law forbids justices from advising, as attorney, in prosecutions instituted before them.-Ib. 7586. (5206) (4257) (4649) (3979) (430) What depositions must state. The depositions must set forth the facts stated by the complainant and his witnesses, tending to establish the commission of the offense and the guilt of the defendant. Duty of committing magistrate under this section.-Harris's case, 73 Ala. 495. Statutes authorizing the taking of testimony by depositions in criminal cases have no application to preliminary examinations.-Couch's case, 63 Ala. 163. See Marks v. Hastings, 101 Ala. 165 (13 So. 297). 7587. (5207) (4258) (4650) (3980) (431) Warrant of arrest to issue, if probable cause shown.—If the magistrate is reasonably satisfied from such deposition that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant is guilty thereof, he must issue a warrant of arrest. Constitution prohibits issue of warrant without probable cause supported by oath or affirmation.-Johnson v. State, 82 Ala. 29 (2 So. 466). A complaint and warrant of arrest provided in this article applies only to preliminary proceedings.-Sale v. State, 68 Ala. 530. Power of officer to issue alias warrant in loss of original.-Clayton v. State, 122 Ala. 91 (26 So. 118). 7588. (5208) (4259) (4651, 4652) (3981, 3982) (432, 433) Form and contents of warrant; to whom directed and by whom executed.-A warrant of arrest is an order in writing, issued and signed by a magistrate, stating the substance of the complaint, directed to a proper officer, and commanding him to arrest the defendant; and such warrant must designate the name of the defendant, if known, but if it state that the name is unknown to the magistrate, then no name need be inserted. It must also state the offense, either by name, or so that it can be clearly inferred; the county in which it was issued must appear from some part of the warrant; and the warrant must be signed by the magistrate, with his name and initials of office, or the same must in some way appear from the warrant. It must be directed "To any lawful officer of the state," and if executed by any lawful officer, having authority to execute it, it is valid, without regard to its direction. It may be, in substance, as follows: 54-AC-VOL. III Complaint, Depositions, and Warrant of Arrest. The State of Alabama, County. S To any lawful officer of the state: Complaint on oath having been made before me that the offense of (designating or describing it) has been committed, and accusing C. D. thereof, you are, therefore, commanded forthwith to arrest C. D. and bring him before me. Dated the 66 day of (Signed) E. F., Justice of the Peace. (or other magistrate, as the case may be.) That complaint or affidavit does not comply with statute no ground for discharging on writ of habeas corpus. Ex parte McGlawn, 75 Ala. 38. Sufficient designation of offense in warrant.-Adams v. Coe, 123 Ala. 664 (26 So. 652); Rhodes v. King, 52 Ala. 272; Spear v. State, 120 Ala. 351 (25 So. 46). Liability of persons for procuring void warrants; warrant, procuring on insufficient complaint; liability of affiant.-Oates v. Bullock, 136 Ala. 537 (33 So. 835). Warrant, procuring special constable to execute it.-Parish v. State, 130 Ala. 92 (30 So. 474). Paper reading as follows: "Proof having been made before me that the offense of petit larceny had been committed, and that Will Brown is accused, you are therefore commanded to arrest Will Brown and bring him before me forthwith," is not a warrant that will protect the officer executing it.-Brown v. State, 109 Ala. 70 (20 So. 103). For the purpose of issuing warrant upon complaint and within the territorial limits of his jurisdiction, a justice of the peace is equal in jurisdiction to any other magistrate for preliminary proceedings.-Humphrey v. State, 125 Ala. 110 (27 So. 969). The fact that the affidavit after charging the offense added the wrods or affray," does not render it invalid.-Louis v. State, 112 Ala. 52 (21 So. 64). Liability of magistrate and affiant for wrongful or malicious prosecution.-Mark v. Hastings, 101 Ala. 165 (13 So. 297). See 127 Ala. 86 (28 So. 602); 1 Stew. 494. Writ of arrest and capias issued upon indictment.— Spear v. State, 120 Ala. 351 (25 So. 46). Sufficiency of warrant.-Wilson v. State, 115 Ala. 129 (22 So. 567). This statute is entirely different from where parties have been arrested on warrants charging misdemeanors, returnable to county court or before justices of the peace for final trial; the same particu larity in describing the offense charged is not necessary.-McGee v. State, 115 Ala. 135 (22 So. 113). Form of warrant examined and held sufficient.— Murphy v. State, 55 Ala. 252. Technical accuracy not required; sufficient to designate offense, either in complaint or warrant, by name only, or by words from which it may be inferred.-Brown's case, 63 Ala. 97; Rhodes v. King, 52 Ala. 272; Crosby v. Hawthorn, 25 Ala. 221. Mere clerical misprision (omitting the word "me") does not affect sufficiency of warrant.-Johnson's case. 73 Ala. 21. Warrant directed to "any lawful officer of the state" is valid.Wilson's case, 99 Ala. 194 (13 So. 427). Warrant can only issue on probable cause supported by oath or affirmation; warrant to answer "a charge of suspicion, etc., based on affidavit charging suspicion only, is void.—Johnson's case, 82 Ala. 29 (2 So. 466). Discharge on Bail Before or Without Preliminary Examination. ARTICLE 2. DISCHARGE ON BAIL BEFORE OR WITHOUT PRELIMINARY EXAMINATION. 7589 SECTION. 7589. When officer arresting may discharge on bail. 7590. Discharge on bail by magistrate. 7592. SECTION. 7591. Same; presumption in fixing amount of bail. 7592. Undertaking and warrant returned to court. 7589. (5224) (4275) (4659) (3989) (440) When officer arresting may discharge on bail.-When the offense described in the warrant is a misdemeanor, and it is executed by the sheriff or his deputy, such sheriff or deputy may, on the request of the defendant, discharge him, on sufficient bail for his appearance at the next term of the court having jurisdiction of the offense, to answer any indictment which may be found against him therefor; and, if such court is in session, for his appearance at such court. (Clay's Digest, p. 448, § 19.) It often occurs in cases of felonies that the defendant appears and waives examination, and is bound over to answer indictment. If this is done, the defendant cannot complain that evidence was not taken down, but the magistrate may proceed with the examination notwithstanding the waiver.-Percy v. State, 125 Ala. 52 (27 So. 844). Sheriff or deputy not required to certify recognizance; being found on file connects it with the return on the capias.-Shreeve's case, 11 Ala. 679. If justice issuing warrant has no jurisdiction to try the case, sheriff may take bail for defendant to appear at next term of court having jurisdiction, or at the present term, if court in session; but if conditioned to appear before the justice, it is void.-Jones's case, 63 Ala. 161. Prisoner charged with misdemeanor is entitled to bail as matter of right, and it is sheriff's ministerial and absolute duty to accept sufficient bail when tendered and discharge prisoner.-Hammond's case, 59 Ala. 168; Taylor v. Smith, 104 Ala. 537 (16 So. 629). 7590. (5225) (4276) (4660) (3990) (441) Discharge on bail by magistrate.-When the offense described in the warrant is a misdemeanor, and it is not executed by the sheriff or his deputy, at the defendant's request, he may be brought before a magistrate of the county in which the warrant was executed; and such magistrate may, without examination, discharge such defendant, upon sufficient bail for his appearance before the court having cognizance of the offense: Power of officer to imprison after arrest.-Hayes v. Mitchell, 69 Ala. 452. 7591. (5226) (4277) (4661) (3991) (442) Same; presumption in fixing amount of bail.-When the bail is taken under the provisions of the last two sections, the officer or magistrate, in fixing the amount of bail, must act on the presumption that the offense is of an aggravated nature. 7592. (5227) (4278) (4662) (3992) (443) Undertaking and warrant returned to court.-The magistrate admitting the Preliminary Examination and Its Incidents. defendant to bail, under the provisions of section 7590 (5225), must certify the same upon the warrant, and deliver such warrant, with the undertaking, to the officer who executed the warrant; who must cause the same to be delivered, without unnecessary delay, to the clerk of the court in which the defendant is bound by his undertaking to appear. (Aikin's Digest, p. 118, § § 22, 23; Clay's Digest, p. 444, § 35; Clay's Digest, p. 448, § 20.) Statute dispenses with many requirements of common law indictments, but substance of proceedings must be set forth; and other averments neeessary. Jacobs's case, 61 Ala. 448. Failure of indictment to describe court in which perjury was committed, fatal.-Rivers v. State, 97 Ala. 72 (12 So. 434). Affidavit and indictment which sufficiently designate and charge the offense.Bradford v. State, 134 Ala. 141 (32 So. 742). Form of indictment examined and held sufficient.--Bradford v. State, 134 Ala. 141 (32 So. 742). False affidavit on application for a new trial before circuit court.-Walker v. State, 107 Ala. 5 (18 So. 393). Oath administered by a de facto officer; perjury can be predicated on oath administered by de facto deputy clerk.-Walker v. State, 107 Ala. 5 (18 So. 393). Form and sufficiency of indictment; variance between indictment and proof.-Walker v. State, 96 Ala. 53 (11 So. 401). What amounts to subornation of perjury.-Booker v. State, 100 Ala. 30 (14 So. 561). Forms in Code, and analogous forms sufficient; sufficient allegation of false testimony, or assignments of perjury; proof of one assignment sufficient.Williams's case, 68 Ala. 551; Brown's case, 47 Ala. 47; Peterson's case, 74 Ala. 34; DeBernie's case, 19 Ala. 23; McMurry's case, 6 Ala. 324; Lea's case, 3 Ala. 602; Smith's case, 103 Ala. 57 (15 So. 866); McClerkin's case, 105 Ala. 107 (17 So. 123); Walker's case, 96 Ala. 53 (11 So. 401); Barnett's case, 89 Ala. 165 (7 So. 414); Hicks's case, 86 Ala. 30 (5 So. 425); Davis's case, 79 Ala. 20. Indictment charging perjury on trial of a person charged with burglary, must allege name of owner of house burglarized.-Davis's case, 79 Ala. 20. Indictment for perjury before grand jury must state name of party and act under investigation.-Banks's case, 78 Ala. 14. |