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Who may admit to bail.

Recognizance of

bail.
8 Cal. 271.

18 Cal. 121.

19 Cal. 676.

Qualifications of bail.

Justification of bail.

The same.

Where charge not capital.

Commitment in capital cases.

Bail on habeas corpus.

Recognizance. 18 Cal. 498.

Form.

CHAPTER II.

BAIL-UPON BEING HELD TO ANSWER BEFORE INDICTMENT.

2102. SEC. 515. When the defendant has been held to answer as provided in section one hundred and sixty-four, the admission to bail may be by the magistrate by whom he is so held or by any magistrate who has the power to issue the writ of habeas corpus.

2103. SEC. 516. Bail is put in by a written recognizance executed by two sufficient sureties (with or without the defendant, in the discretion of the court or magistrate), and acknowledged before the court or magistrate in substantially the following form: "An order having been made on the day of A. D. 18-, by A. B., a justice of the peace of County (or as the case may be), that C. D., held to answer upon a charge of (stating briefly the nature of the offense), upon which he has been duly admitted to bail in the sum of dollars; We, E. F. and G. H. (stating their place of residence), hereby undertake that the above-named C. D. shall appear and answer the charge above mentioned in whatever court it may be prosecuted, and shall at all times hold himself amenable to the orders and process of the court, and if convicted shall appear for judgment and render himself in execution thereof, or if he fail to perform either of these conditions that he will pay to the people of the State of California, the sum of dollars (inserting the sum in which the defendant is admitted to bail).

2104. SEC. 517. The qualifications of bail are as follows: First. Each of them must be a resident and a householder or freeholder within the State; but the court or magistrate may refuse to accept any person as bail, who is not a resident of the county where bail is offered.

Second. They must each be worth the amount specified in the recognizance, exclusive of property exempt from execution; but the court or magistrate, on taking bail, may allow more than two bail to justify severally in amounts less than that expressed in the recognizance, if the whole justification be equivalent to that of sufficient bail.(•) [Amendment, approved May 5, 1855, 269.

2105. SEC. 518. The bail shall in all cases justify by affidavit taken before the court or magistrate, as the case may be. The affidavit must state that they each possess the qualifications provided in section five hundred and seventeen.

2106. SEC. 519. The court or magistrate may thereupon further examine the bail upon oath concerning their sufficiency in such manner as the court or magistrate may deem proper.

CHAPTER III.

BAIL UPON INDICTMENT BEFORE CONVICTION.

2107. SEC. 520. When the offense charged in the indictment is not capital, the officer serving the bench warrant shall, if required, take the defendant before a magis trate in the county in which it is issued or in which he is arrested for the purpose of giving bail as prescribed in sections two hundred and sixty-fifth and two hundred and sixty-eighth.

2108. SEC. 521. If the offense charged in this indictment be capital, the officer arresting the defendant shall deliver him into custody according to the command of the bench warrant, as prescribed in section two hundred and sixty-third.

2109. SEC. 522. When the defendant is so delivered into custody he shall be held by the sheriff unless admitted to bail on examination, upon a writ of habeas corpus. 2110. SEC. 523. The bail must be put in by a written recognizance, executed by two sufficient sureties (with or without the defendant, in the discretion of the court or magistrate), and acknowledged before the court or magistrate, in substantially the following form:

of

"An indictment having been found on the

day of

A. D. eighteen in the county court of the County of charging A. B. with the crime (designating it generally), and he having been duly admitted to bail in the (stating their place of residence), hereby undertake that the above-named A. B. shall appear and answer the indictment above mentioned, in whatever court it may be prosecuted, and shall at all

sum of

dollars, we, C. D. and E. F., of

(") The original section consisted of the same language, with the exception of the words after State" in the first subdivision.

In the second subdivision it had the word "two" before the words "suflicient bail."

times render himself amenable to the orders and processes of the court, and if con-
victed shall appear for judgment and render himself in execution thereof; or, if he
fail to perform either of these conditions, that we will pay to the people of the State
of California the sum of
dollars (inserting the sum in which the defendant is

admitted to bail.")(a) [Amendment, approved April 3, 1863, 158; took effect Janu-
ary 1, 1864.

bail.

2111. SEO. 524. The provisions contained in section five hundred and seventeenth Qualification and to five hundred and nineteenth, both inclusive, in relation to bail, shall apply to the justification of qualifications of the bail and to all the proceedings respecting the putting in and justifying of bail and incident thereto.

CHAPTER IV.

BAIL ON APPEAL.

2112. SEO. 525. In the cases in which the defendant may be admitted to bail upon Order to admit an appeal as provided in section five hundred and twelfth, the order admitting him to bail. to bail may be made by any magistrate having the power to issue a writ of habeas corpus.

2113. SEC. 526. When the admission to bail is a matter of discretion, the court or Notice to district attorney. officer by whom it may be ordered, shall require such notice of the application therefor as he may deem reasonable to be given to the district attorney of the county in which the verdict or judgment was originally rendered.

bail.

2114. SEC. 527. The bail must possess the qualifications and must be put in all re- Qualification of spects as above provided, except that the condition of the recognizance shall be to the Condition of effect that the defendant will in all respects abide the orders and judgment of the recognizance. pellate court upon the appeal.

ap

CHAPTER V.

DEPOSIT INSTEAD OF BAIL.

of bail.

2115. SEC. 528. The defendant at any time after an order admitting him to bail, Deposit in lieu instead of giving bail may deposit with the clerk of the court in which he is held to answer, the sum mentioned in the order, and upon delivering to the officer in whose custody he is a certificate of the deposit, he shall be discharged from custody. 2116. SEC. 529. If the defendant have given bail, he may at any time before the Deposit in forfeiture of the recognizance in like manner deposit the sum mentioned in the recog- of bail. nizance, and upon the deposit being made the bail shall be exonerated.

exoneration

2117. SEC. 530. When money has been deposited, if it remain on deposit at the Disposal of time of a judgment for the payment of a fine, the county clerk shall, under the direc- deposit, tion of the court, apply the money in satisfaction thereof, and after satisfying the fine and costs shall refund the surplus, if any, to the defendant.

CHAPTER VI.

SURRENDER OF THE DEFENDANT.

surrender

2118. SEC. 531. At any time before the forfeiture of their recognizance, the bail Bail may may surrender the defendant in their exoneration, or he may surrender himself to the defendant. officer to whose custody he was committed, at the time of giving bail in the following 5 Cal. 98.

manner:

2119. SEC. 532, A certified copy of the recognizance of bail shall be delivered to Bail, how the officer who shall detain the defendant in his custody thereon as upon a com- exonerated. mitment, and shall by a certificate in writing acknowledge the surrender.

Second. Upon the recognizance and a certificate of the officer, the court in which the action is pending may, upon notice of five days to the district attorney of the county with a copy of the recognizance and certificate, order that the bail be exonerated, and on filing the orders and the papers used on the application, they shall be exonerated accordingly.

2120. SEC. 533. For the purpose of surrendering the defendant, the bail at any Arrest by bail for purpose of time before they are discharged, and at any place within the State, may themselves surrender.

(*) The original section was the same, except that it used the words "court of sessions" instead of "county court."

Surrender after deposit.

arrest him, or by a written authority indorsed on a certified copy of the recogni zance, may empower any person of suitable age and discretion to do so.

2121. Sec. 534. If money have been deposited instead of bail, and the defendant at any time before the forfeiture thereof shall surrender himself to the officer to whom the commitment was directed in the manner provided in the last two sections, the court shall order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon a notice of five days to the district attorney with a copy of the certificate.

Recognizance forfeited.

Discharge of forfeiture.

Action on recognizance.

7 Cal. 402.

Disposal of

CHAPTER VII.

FORFEITURE OF THE RECOGNIZANCE, OR OF THE DEPOSIT OF MONEY.

2122. SEO. 535. If without sufficient excuse the defendant neglect to appear for arraignment or for trial or judgment, or upon any other occasion, when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court shall direct the fact to be entered upon its minutes, and the recognizance or the money deposited instead of bail, as the case may be, shall thereupon be declared forfeited.

2123. SEC. 536. If at any time before the final adjournment of the court the defendant appear and satisfactorily excuse his neglect, the court may direct the forfeiture of the recognizance or the deposit to be discharged upon such terms as may be just.

2124. SEC. 537. If the forfeiture be not discharged as provided in the last section, the district attorney may at any time after the adjournment of the court proceed by action only against the bail upon their recognizance.

2125. SEC. 538. If by reason of the neglect of the defendant to appear, as provided forfeited deposit. in section five hundred and thirty-fifth, money deposited instead of bail is forfeited, and the forfeiture be not discharged or remitted, as provided in section five hundred and thirty-sixth, the clerk with whom it is deposited shall immediately after the final adjournment of the court pay over the money deposited to the county treasurer.

Recommitment

of defendant.

Order for recommitment

Arrest on order.

Commitment.

CHAPTER VIII.

RECOMMITMENT OF THE DEFENDANT AFTER HAVING GIVEN BAIL.

2126. SEO. 539. The court to which the committing magistrate shall return the depositions and statement, or in which an indictment or an appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order to be entered on its minutes, direct the arrest of the defendant and his commitment to the officer to whose custody he was committed at the time of giving bail, and his detention until legally discharged in the following cases:

First. When by reason of his failure to appear he has incurred a forfeiture of his bail or of money deposited instead thereof, as provided in section five hundred and thirty-fifth:

Second. When it satisfactorily appears to the court that his bail or either of them are dead or insufficient, or have removed from the State:

Third. Upon an indictment being found in the cases provided in section two hundred and sixty-ninth.

2127. SEC. 540. The order for the recommitment of the defendant shall recite generally the facts upon which it is founded, and shall direct that the defendant be arrested by any sheriff, constable, marshal, or policeman, within this State, and committed to the custody of the sheriff of the county where the depositions and statement were returned, or the indictment was found, or the conviction was had, as the case may be, to be detained until legally discharged.

2128. SEC. 541. The defendant may be arrested pursuant to the order, upon a certified copy thereof in any county in the same manner as upon a warrant of arrest, except that when arrested in another county, the order need not be indorsed by a magistrate of that county.

2129. SEC. 542. If the order recite as the grounds upon which it is made the failure of the defendant to appear for judgment upon conviction, the defendant must be committed according to the requirement of the order.

2130. SEO. 543. If the order be made for any other cause, and the offense be bailable, Bail the court may fix the amount of bail, and may cause a direction to be inserted in the order that the defendant be admitted to bail in the sum affixed, which shall be specified in the order.

day of

bail.

2131. SEC. 544. When the defendant is admitted to bail, the bail may be taken by Who may take any magistrate in the county having authority in a similar case to admit to bail upon the holding the defendant to answer before an indictment, as prescribed in section five hundred and fifteenth, or by any other magistrate to be designated by the court. 2132. SEC. 545. When bail is taken upon the recommitment of the defendant, the Form of recognizance shall be in substantially the following form. An order having been made recognizance. on the A. D. 18-, by the court (naming it), that A. B. be admitted to bail in the sum of dollars in an action pending in that court against him in behalf of the people of the State of California upon an (information, presentment, indictment, or appeal, as the case may be), we, C. D. and E. F., of (stating their places of residence), hereby undertake that the above-named A. B. shall appear in that or any other court in which his appearance may be lawfully required upon that (information, presentment, indictment, or appeal, as the case may be), and shall at all times render himself amenable to its orders and processes, and appear for judgment and surrender himself in execution thereof, or if he fail to perform either of these conditions, that he will pay to the people of the State of California the sum of dollars (insert the sum in which the defendant is admitted to bail).

bail.

2133. SEO. 546. The bail must possess the qualifications, and must be put in, in all Qualification of respects, in the manner heretofore prescribed.

TITLE XII.

OF MISCELLANEOUS PROCEEDINGS.

CHAPTER I.

COMPELLING THE ATTENDANCE OF WITNESSES.

2134. SEO. 547. The process by which the attendance of a witness before a court Subpoena. or magistrate is required is a subpœna.

2135. SEC. 548. A magistrate before whom an information is laid, may issue sub- Who may issue pœnas, subscribed by him for witnesses within the State, either on behalf of the subpoenas. people or of the defendant.

attorney.

2136. SEC. 549. The district attorney may issue subpoenas, subscribed by him for District witnesses within the State, in support of the prosecution, or for such other witnesses as the grand jury, upon any investigation pending before them, may direct.

2137. SEO. 550. The district attorney may in like manner issue subpoenas, subscribed The same. by him, for witnesses within the State, in support of an indictment to appear before the court at which it is to be tried.

defendant.

2138. SEO. 551. The clerk of the court at which an indictment is to be tried shall subpoenas for at all times upon the application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him as clerk, for witnesses within the State, as may be required by the defendant.

substan- Form of You are subpoena. -county

2139. SEO. 552. A subpoena authorized by the last four sections shall be tially in the following form: The people of the State of California to A. B. commanded to appear before C. D., a justice of the peace of township, in (or as the case may be), at (naming the place) on (stating the day and hour) as a witness in a criminal action, prosecuted by the people of the State of California, against E. F. Given under my hand, this day of —, A. d. 18—. G. H., justice of the peace (or "J. B., district attorney," or "by order of the court, L. M., clerk," as the case may be).

2140. SEC. 553. If books, papers, or documents be required, a direction lowing effect shall be contained in the subpoena: And you are required ‹. with you the following (describing intelligibly the books, papers, o required).

the fol- Duces tecum. , to bring documents

2141. SEO. 554. A peace officer must serve within his county any subpœna delivered Who shall serve. to him for service, either on the part of the people or of the defendant, and must

Manner of service.

Payment of witnesses.

The same.

Attendance of witnesses from out the county.

Disobeying subpœna. Forfeiting

recognizance.

Disobeying defendant's subpoena

make a written return of the service, subscribed by him, stating the time and place of service without delay.

2142. SEC. 555. The service of a subpoena shall be by showing the original to the witness personally, and informing him of the contents.

2143. SEO. 556. When a person shall attend before a magistrate, grand jury, or court, as a witness on behalf of the people, upon a subpoena or by virtue of a recognizance, and it shall appear that he has come from any place out of the county, or that he is poor, the court, if the attendance of the witness be upon a trial by an order upon its minutes, or in any other case, the county judge by an order subscribed by him, may direct the treasurer of the county to pay the witness a reasonable sum to be specified in the order for his expenses.

2144. SEC. 557. Upon the production of the order or a certified copy thereof, the county treasurer shall pay the witness the sum specified therein out of the county treasury.

2145. SEC. 558. No person shall be obliged to attend as a witness before any court or judge out of the county where the witness resides, or is served with the subpoena, unless a judge of the court in which the offense is triable, or a justice of the supreme court, or a county judge, upon an affidavit of the district attorney or prosecutor of the defendant or his counsel, stating that he believes the evidence of the witness is material and his attendance at the examination or trial necessary, shall indorse on the subpoena an order for the attendance of the witness.

2146. SEC. 559. Disobedience to a subpoena or a refusal to be sworn or to answer as a witness may be punished by the court or magistrate as a contempt.

2147. SEC. 560. Where a witness has entered into a recognizance to appear, as provided in section one hundred and seventieth, upon his failure to do so his recognizance shall [be] forfeited in the same manner as recognizances of bail.

2148. SEC. 561. A witness disobeying a subpoena issued on the part of the defendant, shall also forfeit to the defendant the sum of one hundred dollars, which may be recovered in a civil action, unless good cause can be shown for his nonattendance.

CHAPTER II.

When witnesses
may be examined
on commission.
6 Cal, 203.

Who may be examined on commission.

Commission defined.

Who may be commissioner.

Application for commission.

To whom made.

Order.

TESTIMONY TAKEN BY COMMISSION.

2149. SEO. 562. When a defendant has been held to answer a charge for a public offense he may either before or after an indictment have witnesses examined on his behalf, as prescribed in this chapter and not otherwise.

2150. SEO. 563. When a material witness for the defendant is about to leave the State, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally on a commission.

2151. SEO. 564. A commission is a process issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath, on interrogations annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given in the commission.

2152. SEC. 565. The commissioner shall either be a district judge, county judge, county clerk, or notary public of the county to which the commission is issued. 2153. SEO. 566. The application must be made upon affidavit, showing: First. The nature of the offense charged.

Second. The state of the proceedings in the action.

Third. The name of the witness, and that his testimony is material to the defenso of the action.

Fourth. That the witness is about to leave the State or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial. 2154. SEC. 567. The application may be made to the court during the term, or to the judge in vacation, and must be upon three days' notice to the district attorney.

2155. SEC. 568. If the court or judge to whom the application is made be satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order shall be made that a commission be issued to take his testimony.

2156. SEC. 569. If the application for a commission be granted, the court or judge

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