Art. 41. Another case in which the court must interfere to prevent offences is, by ordering the removal of all such obstructions in public and common property, and all such establishments injurious to public health, as shall be found by a conviction of the offender to have been made.

CHAPTER IV.

Of search warrants, as the means of preventing the commission of crimes and the loss of property by theft.

Art. 42. A search warrant is an order in writing made by a magistrate, directed to an officer of justice, commanding him to search for certain specified articles, supposed to be in the possession of one who is charged with having obtained them illegally, or who keeps them with the intent of using them as the means of committing a certain designated crime.

Art. 43. The power of granting this writ is one in the exercise of which much is necessarily left to the discretion of the magistrate; he is, however, bound by the following rules in granting the warrant, and the ministerial officer by those which are afterwards laid down for his conduct in executing it.

Rules for the magistrate in granting a search warrant.

1. Search warrants can only be granted for the following purposes, that is to say:

To discover property taken by theft or under false pretences, or found and fraudulently appropriated.

To seize forged instruments in writing or counterfeited coin intended to be passed, or the instruments or materials prepared for making them. To seize arms or munitions prepared for the purpose of insurrection or riot.

To discover articles necessary to be produced on the trial of one accused of a crime under the circumstances hereinafter stated.

2. A search warrant can be granted in no case but on an AFFIDAVIT, made by a credible person.

3. If the application be to search for property taken by theft or under false pretences, the affidavit must state that the property has been lost by one of these offences; it must describe the property, and state a belief and the reason of such belief, that the property is concealed in a certain place, describing it.

4. If forged papers, false coin, or the instruments or materials for making them, form the object of the application, the affidavit must state a belief and the reason on which it is founded, that those articles or some of them are concealed in a certain place, describing it, with intent to commit a crime.

5. If the application be to search for arms or munitions prepared for insurrection or riot, the affidavit must state a belief and reasonable

grounds for such belief, that a conspiracy has been formed, or an unlawful assembly held, for the purpose of preparing the means for executing those offences, and that the arms or munitions were part of such preparation; and must also describe the place in which it is suspected they are deposited.

6. When any one accused of a crime before a magistrate, to whom it shall appear from the circumstances in evidence before him, that the production of some weapon, implement or other article, will be necessary on the trial of the accusation, if it shall appear by the oath of at least one witness, that there is good reason to believe that such article is concealed in a certain place, this warrant may also issue.

7. The designation of a house by the name of the owner or the occupant, or by the number or situation, is a sufficient description of place under the preceding articles.

8. If the magistrate be satisfied of the truth of the allegations in the affidavit, he shall make his warrant in the form prescribed for that purpose in this code, but no variation from that form shall affect the validity of the warrant, provided it be not deficient in one of the following requisites:

First. It must be in WRITING, and signed by the magistrate with his name; and the designation of the office he holds, must appear either by the signature or in the form of the warrant.

Second. It must be directed to the sheriff or to some other officer of justice if to the sheriff, it may be by the designation of his office; if to any other officer of justice, his name as well as his office must be put in the direction.

Third. It must direct him to search for and bring before the magistrate to be disposed of according to law, the property or articles specified in the affidavit, describing it as set forth in the affidavit.

Fourth. The place to be searched must be specified with reasonaable certainty.

Fifth. The officer must be directed to execute the warrant in the day time.

Sixth. The officer must be directed to bring the property described, and the person in whose possession it may be found, before the magistrate for examination, without delay.

9. When the property is brought before the magistrate, if upon the examination and evidence offered him it shall be identified to be the same with that described in the affidavit, and that it was taken or held for the purpose mentioned therein, he shall cause an inventory to be publicly taken thereof, in the presence of the party in whose possession it was found and of the applicant for the warrant, if they choose to attend; one copy of which shall be given to each of them, one kept by the sheriff, and another filed by the magistrate, with his proceedings, for the purpose of being sent with the articles seized to the court that shall try the offence.

10. If the magistrate discovers either that the property seized is not the same with that described in the affidavit and warrant, or that there is no good reason for the suspicions set forth in the affidavit, he shall direct the property to be restored, and the possessor, if brought before him, discharged.

11. If the person in whose possession the property was found, shall be brought before the magistrate in obedience to the writ, he shall pro

ceed to his examination in the manner directed for examinations on arrests, and shall either discharge, commit or let him to bail, as is directed in that part of this code.

Rules for the government of officers of justice in the execution of

search warrants.

1. If the warrant be directed to a sheriff, it may be executed by him or any of his known deputies previously appointed, but if he make a special deputy for the purpose of the deputation, the name of the person shall be written on the warrant.

2. If the warrant be directed by the magistrate to any other officer of justice, he must see that his name as well as his office is written in the warrant, and in all cases the officer must see that the warrant contain all the requisites above stated, to give it validity; if it do not, he is not bound to execute it.

3. Before executing the warrant, the officer must give notice of its execution to the person who applied for it, that he may be present and identify the property if it be found.

4. The warrant must be executed in the presence of two inhabitants of the parish, who shall sign the return as witnesses.

5. It can only be executed in the DAY TIME.

6. No other place than that designated in the warrant can be searched, but the whole of that may be examined.

7. The officer charged with the warrant, if a HOUSE is designated as the place to be searched, may enter it without demanding permission if he find it open; if the doors be shut, he must declare his office and his business, and demand entrance; if the doors be not opened, he may break them. When entered, he may demand that any other part of the house, or any closet, or other closed place in which he has reason to believe the property is concealed, may be opened for his inspection, and he may break them if it is refused.

8. If required, the officer must show his warrant.

9. He makes himself liable to damages and to the penalties prescribed by the Code of Crimes and Punishments in cases of misbehaviour in office, by any unnecessary force, harshness or ill usage in the discharge of this duty.

10. An inventory of the property seized must be made before it is removed, and signed by the officer and the two witnesses.

11. No other property but that specified in the warrant must be seized.

12. If the property specified in the warrant be seized, the person in whose possession it was found must be arrested, according to the forms in this code for making arrests, and with the property brought for examination before the magistrate who issued the warrant.

13. A return shall be indorsed or annexed to the warrant, stating what was done in obedience to it, and signed by the officer and the two witnesses.

Art. 44. Whoever shall maliciously and without reasonable cause, procure any search warrant to be issued and executed, shall be fined not less than fifty nor more than three hundred dollars, or imprisoned not less than thirty days nor more than six months, and the imprisonment, or any part of it, may be in close custody.

Art. 45. If any magistrate shall issue a search warrant without a previous affidavit, as required by this chapter, he shall suffer the punishment mentioned in the last preceding article, and be deprived of his office.

Art. 46. Any officer of justice, who in executing a search warrant, shall exceed his authority to the injury of any one, shall be imprisoned not exceeding sixty days, besides suffering the punishment assigned to any other offence he may have committed by such illegal conduct.

TITLE II.

OF SUPPRESSING PERMANENT OFFENCES.

Art. 47. Permanent offences are such as are renewed by a continued succession of the same acts which first created them. They may affect the public tranquillity, the public health, the public property, or the person, the reputation, or the property of individuals.

CHAPTER I.

Of suppressing permanent offences against the public tranquillity.

Art. 48. The mode in which magistrates and officers of justice are to proceed in the suppression of offences of this nature, is declared in the title that treats of those offences in the Code of Crimes and Punishments, and will be further provided for in the next title of this book.

CHAPTER II.

Of suppressing permanent offences against public health and safety.

Art. 49. Whenever an indictment shall be found against any one for carrying on a business injurious to the health of those in the vicinity, if the indictment shall charge that any persons have actually suffered in their health from the exercise of such business, the court on the application of those interested and after hearing the person accused and receiving statements on oath on both sides, may in their discretion enjoin the person accused, in such penalty as they may deem reasonable, not to carry on the said business, or to carry it on in a place or in a manner that will not prove injurious to the health of others until the trial; and if a conviction shall be had on such indictment, the injunc

tion shall be perpetual in conformity with the provisions of the third chapter of the first title of this book.

Art. 50. In like manner if an indictment be found against any one for carrying on a manufacture of powder or other dangerous operation, contrary to the provisions of the Code of Crimes and Punishments, a like injunction, and an order for the removal of the dangerous substance to a safe distance may be made by the court in which the indictment is found.

CHAPTER III.

Of suppressing permanent offences against the public enjoyment of property held for common use of all the citizens.

Art. 51. If any one shall erect any building or make any other permanent obstruction which shall prevent the free use of any public property held for the common use of all the citizens, and which shall have been in such common use for twelve months next preceding the time of erecting such obstruction, the judge of the court of the highest criminal jurisdiction in the district may on complaint and proof of the facts above stated, cite the party accused of making such obstruction, to appear before him, and in a summary way shall take evidence of the facts, and if the inconvenience to the public from the obstruction be so great, as in his opinion to render it improper to wait the event of a trial for the offence, and the fact of one year's previous possession and use in the public is clearly proved, he may order such obstruction to be removed by the sheriff.

Art. 52. No further penalty can be imposed until a conviction take place, on an indictment or information for the offence.

Art. 53. If no indictment or information be filed against the party whose building has been removed, or if on the trial he shall be acquitted by showing title to the property on which it was erected, he is entitled to an indemnity from the person making the complaint, for any damage he may have suffered by the removal.

CHAPTER IV.

Of the suppression of permanent offences against morals and de

cency.

Art. 54. In cases of publications which come within this description of offences, the suppressive remedy is set forth in the article of the third chapter and first title of this book; if the offence be committed by indecent exposure, it is suppressed on complaint and arrest, in the manner directed for other offences, and by taking security for good behaviour.