§ 794. Before issuing warrant, magistrate must examine, on oath, the complainant and his witnesses. — 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. $795. Depositions, what to contain. - The depositions must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist. § 796. Magistrate, when to issue warrant. — If the magistrate be 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. § 797. Form of the warrant.-The warrant must be in substantially the following form: "County of Albany, [or as the case may be.] "In the name of the people of the state of New York: "To any peace officer in the county of Albany, [or as the case may be] proof by affidavit, having been this day made before me, by [naming every person whose affidavit has been taken,] that [stating the particular grounds of the application, according to section 792; or if the affidavits be 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 day time, [or "at any time of the day or night," as the case may be, according to section 801,] to make immediate search on the person of C. D., [or "in the building 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.] the "Dated at the city of Albany, [or as the case may be] day of 18 "E. F., Justice of the peace of the city [or town] of [or as the case may be.] See Johnson v. Comstock, 14 Hun, 238. §798. By whom served.-A search warrant may, in all cases, be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer, on his requiring it, he being present and acting in its execution. to § 799. Officer may break open door or window, execute warrant.-The officer may break open an outer or inner door or window of a building, or any part of the building, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance. Bell v. Clapp, 10 Johns., 263. § 800. May break open door or window, to liberate himself or person acting in his aid.-He may break open any outer or inner door or window of a building, 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. § 801. When warrant may be served in the night time. The magistrate must insert a direction in the warrant, that it be served in the day time, unless the affidavits be 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. § 802. When warrant must be executed and returned.-A search warrant must be executed, and returned to the magistrate by whom it was issued, if issued in the city and county of New York, within five days after its date, and if in any other county, within ten days. After the expiration of those times respectively, the warrant, unless executed, is void. § 803. Officer to give 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. §804. Property when delivered to magistrate, how disposed of. When the property is delivered to the magistrate, he must, if it was stolen or embezzled, dispose of it as provided in sections 687 to 689, both inclusive. If it were taken on a warrant issued on the grounds stated in the second and third subdivisions of section 792, 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 was taken, is triable. § 805. Return of warrant, and delivery to magistrate of inventory of property taken.-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 be present, verified by the affidavit of the officer, and taken before the magistrate, to the following effect: "I, A. B., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant." § 806. Magistrate to deliver copy of inventory to the parties. The magistrate must thereupon, if re quired, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant. § 807. If grounds for warrant controverted, magistrate to take testimony. If the grounds on which the warrant was issued be controverted, the magistrate must proceed to take testimony in relation thereto. §808. Testimony, how taken and authenticated.— The testimony given by each witness must be reduced to writing and authenticated in the manner prescribed in section 200. § 809. Property, when to be returned.— If it appear that the property taken is not the same as that prescribed in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken. § 810. Return to be made to court of sessions or city court having jurisdiction. The magistrate must annex together the depositions, the search warrant and return, and the inventory, and return them to the next court of sessions of the county, or city court, having power to inquire into the offense in respect to which the search warrant was issued, by the intervention of a grand jury, at or before its opening on the first day. § 811. Maliciously procuring search warrant, a misdemeanor. A person, who maliciously and without probable cause, procures a search warrant to be issued and executed, is guilty of a misdemeanor. § 812. Peace officer, exceeding his authority. A peace officer, who, in executing a search warrant, willfully exceeds his authority, or exercises it with unnecessary severity, is guilty of a misdemeanor. § 813. Person charged with felony supposed to have a dangerous weapon, etc.- When a person charged with a felony is supposed by the magistrate before whom he is brought, to have upon his person a dangerous weapon, or any thing which may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order or the order of the court in which the defendant may be tried. TITLE III. Of the Outlawry of Persons Convicted of Treason. SEC. 814. When application for outlawry may be made. 815. On what proof to be made. 816. Order that the defendant appear to receive judgment, or be outlawed. 817. Publication of order. 818. Judgment on appearance of defendant, or on his not appearing 819. Effect of the judgment. 820. Filing judgment roll, and transcripts thereof. 821. Judgment roll, of what to consist. 822. Appeal may be at any time taken, by defendant, from 823. Appeal, how taken, and proceedings thereon. 825. Defendant may be arrested to receive judgment, not- 826. No other proceeding for outlawry in criminal cases allowed. § 814. When application for outlawry may be made. When, upon a bench warrant issued for the apprehension of a person who has pleaded guilty, or against whom a verdict has been rendered, upon an indictment for treason, it is duly returned that the defendant cannot be found, the district attorney of the county may apply to the court in which the conviction was had, for judgment of outlawry. § 815. On what proof to be made.-The application must be founded upon the return of the bench warrant, and upon proof, by affidavit, that the defendant has escaped, and on diligent search cannot be found within the ounty. |