# Old West law and order



## Dave Watson (Jan 31, 2018)

One for any old west enthusiasts. My WIP is set in the Napa Valley in the 1890s, and I have a scene where a sheriff is riding up to a gin distillery where he suspects the owner and her son are involved in murder and kidnapping, plus harbouring several wanted men who've been hired as guards. Question is, what was the process of law here? Would the sheriff need a warrant to enter the premises?  

Cheers!


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## Bayview (Jan 31, 2018)

The need for search warrants comes from the 4th Amendment, so the general principles certainly would have been in place in the 1890s. But according to Wikipedia, "Because the Bill of Rights did not initially apply to the states, and federal criminal investigations were less common in the first century of the nation's history, there is little significant case law for the Fourth Amendment before the 20th century. The amendment was held to apply to the states in _Mapp v. Ohio (1961)." _- https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

So based on that I think you'd probably be okay, but I'm neither American nor a legal historian, so... if anyone comes along who seems to know better, trust them!


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## seigfried007 (Jan 31, 2018)

Regarding Westerns, spin a really good yarn and the lawyers will likely stay quiet. Historians, however, might be a bigger threat. who held the Napa Valley at that time, and for how long have they held it? There's a lot of flux in culture and leadership in the Southwest during the 1800's, so even though America technically holds it, it's always wise to consider who else is living there and how they feel about it. Details like that can really help make or break a Western work, but I've met fairly few who care deeply about legal proceedings (we only care if they're plot points, I think).


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## Dave Watson (Feb 2, 2018)

Thanks for the replies guys, and yeah, it's one of those things that doesn't really matter at the end of the day. I just get picky sometimes about keeping the details as factual as possible when in reality, readers don't really seem to give much of a damn as long as it doesn't mess with the story! 

Another question though in the same topic, and this one could actually have a bearing on the end of the story. If a criminal dies during an investigation and has a lot of money in the bank and no one to give it to, no next of kin, what happens to the funds? Is it just given over to the local government? A charity?


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## Bayview (Feb 2, 2018)

Dave Watson said:


> Thanks for the replies guys, and yeah, it's one of those things that doesn't really matter at the end of the day. I just get picky sometimes about keeping the details as factual as possible when in reality, readers don't really seem to give much of a damn as long as it doesn't mess with the story!
> 
> Another question though in the same topic, and this one could actually have a bearing on the end of the story. If a criminal dies during an investigation and has a lot of money in the bank and no one to give it to, no next of kin, what happens to the funds? Is it just given over to the local government? A charity?



It's called dying intestate, when you have no will. At least in modern days there's a fairly long list of people who can receive the money (like, on to distant cousins) but if there's absolutely no family, the state generally gets the money. The exact order of things varies, but in modern California, you could look at the California Probate Code s. 6402. 

I have no idea how this was handled in the time period you're discussing, though. It looks like there was a probate code, so maybe you could base your research around that? - http://www.legintent.com/california-probate-code-statutory-history/


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## velo (Feb 2, 2018)

I would say that in 1890 California it would vary greatly by where you were in the state.  CA had been a state for 4 decades.  Places like San Francisco would have been quite civilised (for the time) in terms of the law but if your distillery is well outside of town...?   

Article I Sec 13 (adopted in 1879) of the CA Constitution created the rights of CA citizens and be secure in their persons and possessions from gov't search save if a warrant has been issued.  I would say that technically you def want to address it but it's also something you can play with within the Western genre and maybe dish out a little frontier justice.


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