Breach of bail bond.-The defendant, in a charge of misdemeanor, is not required to be personally present at the trial, and therefore a failure to be personally present when his case is called is not a breach of the undertaking of Lis bail: Ex parte Budd, 57 Cal. 349.

in the name of the county: Mendocino Co. v. Lamar, 30 Id. 628; San Francisco v. Randall, 54 Id. 408. "We see no objection to sustaining the action when brought either in the name of the county or of the people. The section above referred to [1287] requires that the amount named shall be payable to the people of the state of California; when recovered, it is to take certain named directions:" People v. De Pelanconi, 63 Id. 409, 410.

Action, in whose name brought. In several cases in this state the action has been sustained when brought in the name of the people: People v. Smith, 18 Cal. 498; People v. Love, 19 Id. 677; People v. Penniman, 37 Id. 271. It has been sustained also when brought 1307. Deposit, when forfeited, how disposed of.

District attorney authorized to bring ac. tion: Pol. Code, sec. 4256, subd. 3.

SEC. 1307. If, by reason of the neglect of the defendant to appear, money deposited instead of bail is forfeited, and the forfeiture is not discharged or remitted, the clerk with whom it is deposited must, immediately after the final adjournment of the court, pay over the money deposited to the county treasurer.

ARTICLE VIII.

RECOMMITMENT OF THE DEFENDANT, AFTER HAVING GIVEN BAIL OR DEPOSITED MONEY

INSTEAD OF BAIL.

1310. Recommitment of defendant, in what cases.

SEC. 1310. The court to which the committing magistrate returns the depositions, or in which an indictment, information, or appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon 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:

1. When, by reason of his failure to appear, he has incurred a forfeiture of his bail, or of money deposited instead thereof;

2. When it satisfactorily appears to the court that his bail, or either of them, are dead or insufficient, or have removed from the state;

3. Upon an indictment being found or information filed in the cases provided in section nine hundred and eighty-five. [Amendment, approved April 9, 1880; Amendments 1880, 27 (Ban. ed. 173); took effect immediately.]

1311. Contents of order.

SEC. 1311. The order for the recommitment of the defendant must recite generally the facts upon which it is founded, and direct that the defendant be arrested by any sheriff, constable, marshal, or policeman in this state, and committed to the officer in whose custody he was at the time he was admitted to bail, to be detained until legally discharged.

1312. Defendant may be arrested in any county.

SEC. 1312. 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.

1313. If for failure to appear for judgment, defendant to be committed.

SEC. 1313. If the order recites, as the ground 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.

1314. If for other cause, he may be admitted to hail.

SEC. 1314. If the order be made for any other cause, and the offense is bailable, 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 fixed, which must be specified in the order.

1315. Bail in such case, by whom taken.

SEC. 1315. When the defendant is admitted to bail, the bail may be taken by any magistrate in the county, having authority in a similar case to admit to bail, upon the holding of the defendant to answer before an indictment, or by any other magistrate designated by the court.

1316. Form of the undertaking.

SEC. 1316. When bail is taken upon the recommitment of the defendant, the undertaking must be in substantially the following form:

An order having been made on the

day of, A. D. eighteen —, 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 and occupation), hereby undertake that the above-named A B will 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 will at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we 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).

Undertaking: Sec. 1278, note.

1317. Bail must possess what qualifications, and how put in.

SEC. 1317. The bail must possess the qualifications, and must be put in, in all respects, in the manner prescribed in Article II. of this chapter.

Sureties: Sec. 1278, note.

Qualifications of bail: Sec. 1279.

CHAPTER II.

WHO MAY BE WITNESSES IN CRIMINAL ACTIONS.

1321. Who competent witnesses.

SEC. 1321. The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this code.

Competency of witnesses.-The chapter relative to witnesses in the Code of Civil Procedure, secs. 1878 to 1884, is as follows:

1878. Witnesses defined.

SEC. 1878. A witness is a person whose declaration under oath is received as evidence for any purpose, whether such declaration be made on oral examination, or by deposition or affidavit. 1879. All persons capable of perception and communication may be witnesses.

SEC. 1879. All persons, without exception, otherwise than is specified in the next two secions, who, having organs of sense, can perceive, and, perceiving, can make known their preceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witness may be drawn in question, as provided in section eighteen hundred and forty-seven.

Competency. It was held that a foreigner was not disqualified by the mere fact that he did not, when first produced, understand the meaning of the word "obligation," as applied to an oath. The section follows the fourth

section of the first article of the constitution, as to matters of religious belief: Fuller v. Fuller,

17 Cal. 612. No witness can be excluded in any case on account of nationality or color: People v. Maguire, 45 Id. 57. An attorney of

record who is a witness in a cause may sum it up before the court or jury: Branson v. Caruthers, 49 Id. 382. But see the rules of the courts 1880. Persons who cannot testify.

as to asking leave to do this. One who nas been convicted of felony may testify: People v. McLane, 60 Id. 412.

SEC. 1880. The following persons cannot be witnesses:

1. Those who are of unsound mind at the time of their production for examination;

2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly;

2. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. [Amendment, approved April 16, 1880; Amendments 1880, 112 (Ban. ed. 347); took effect immediately.]

Subd. 2. Children. —There is no precise age within which children are excluded. It is essential that they should possess sufficient intelligence to receive just impressions of the facts respecting which they are examined, sufficient capacity to relate them correctly, and sufficient instruction to appreciate the nature and obligation of an oath. It is for the court to decide the question of their competency, when they are offered as witnesses: Sec. 2102. If over fourteen years of age, the presumption is that they possess the requisite knowledge and understanding; but if under that age the presumption is otherwise, and it must be removed upon their examination by the court, or under its direction, in its presence and in the presence of the parties, before they can be sworn: People v. Bernal, 10 Cal. 67; Commonwealth v. Hutchinson, 10 Mass. 225; Jackson v. Gridley, 18 Johns. 104; Den v. Van Cleve, N. J. L. 589; Rex v. Williams, 7 Car. & P. 320; 1 East P. C. 442.

See People v. Welsh, 63 Cal. 167, where a child nine years of age testified on behalf of

the prosecution. A deaf and dumb child nine years of age, who has no idea of the sanctity of an oath, and who cannot be made to understand questions asked, cannot be a witness: Terry v. Duran, 2 West Coast Rep. 274 (N. M.).

Subd 3. Parties to an action against executor.-This applies not only to parties who have an interest adverse to the estate, but to all nominal parties to the action: Blood v. Fairbanks, 50 Cal. 420. But not to a party claiming a family allowance: Estate of McCausland, 52 Id. 568.

This subdivision does not prohibit a person against whom an action is prosecuted by an executor, on a claim in favor of an estate, from being a witness in his own behalf: Sedgwick v. Sedgwick, 52 Cal. 336. Nor is it to be construed to prevent an executor or administrator from calling a party to the action to testify on behalf of the estate: Chase v. Evoy, 51 Id. 618. One seeking to charge the deceased as a trustee may testify: See Meyers v. Reinstein, 6 West Coast Rep. 635, where this section is considered.

1881. Persons in certain relations to parties prohibited.

SEC. 1881. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; and therefore, a person cannot be examined as a witness in the following cases:

1. A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other;

2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment;

3. A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs;

4. A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient;

5. A public officer cannot be examined as to communications made to him in official confidence, when the public interests would suffer by the disclosure.

Subd. 1. Husband and wife: See sec. 1322 of the Penal Code; and People v. Langtree, 64 Cal. 256, construing the same in regard to wife's testifying against her husband in a criminal action.

Subd. 2. Attorney.-The above doctrine was affirmed in Landsberger v. Gorham, 5 Cal. 450. But statements made by the client to other persons, or by other persons to him, in the attorney's presence, are not privileged, and the attorney is bound to disclose them: Gallagher v. Williamson, 23 Id. 331. If it appears by extraneous evidence, or from the very nature of the transaction, that confidence was not and (on the maxims by which human nature is

ordinarily governed) could not have been contemplated, then the fact may be proved by the testimony of the attorney: Hager v. Shindler, 29 Id. 63; Gower v. Emery, 18 Me. 82. If a client, pending the relation, communicates to his attorney a fact foreign to the object for which the attorney was retained, the communication is not privileged, where the attorney is a party to the transaction; especially if it is a fraud or fraudulent transaction, whether aware of the fraudulent intention or not:

Hager v. Shindler, 29 Cal. 63. An attorney must state by whom he was employed: Satterlee v. Bliss, 36 Id. 507; Chirac v. Reinicker, 11 Wheat. 280; 1 Greenl. Ev., sec. 245; Gower v.

Emery, 18 Me. 82; Brown v. Payson, 6 N. H. 448; Beckwith v. Benner, 6 Car. & P. 681. The rule given in the section has a tendency to prevent the full disclosure of the truth, and ought to be strictly construed: Satterlee v. Bliss, 36 Cal. 507; Foster v. Hall, 12 Pick. 90; Gower v. Emery, 18 Me. S2. When the attorney-witness was unable to state whether admissions were made to him as counsel of an accused person, or whilst the latter was under examination as a witness in his own behalf, it was held that

the court should have excluded the testimony of its own motion. The accused should have had the benefit of the doubt: People v. Atkinson, 40 Cal. 285.

Subd. 3. Clergyman or priest.-A priest may be examined with respect to facts brought to his knowledge on a preliminary examination, and with a view to learn whether a party was in a proper condition of mind to make a confession: Estate of Toomes, 54 Cal. 509.

1882. When privileged person must testify. Section 1882 was repealed by act approved February 28, 1876; Amendments 1875-6.105; took effect immediately.

1883. Judge or a juror may be witness..

SEC. 1883. The judge himself, or any juror, may be called as a witness by either party; but in such case it is in the discretion of the court or judge to order the trial to be postponed or suspended, and to take place before another judge or jury.

Judge. When a justice before whom a suit to become a witness, public policy prohibits a is pending is a witness, it is proper to transfer juryman from impeaching his own verdict by it: Sec. 833; Davis v. Gallen, 2 Cal. 360. affidavit: Sec. 657; People v. Doyell, 48 Cal. Juror.-Although a juror is not disqualified 90.

1884. When interpreter to be sworn.

SEC. 1884. When a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. Any person, a resident of the proper county, may be summoned by any court or judge to appear before such court or judge to act as interpreter in any action or proceeding. The summons must be served and returned in like manner as a subpoena. Any person so summoned who fails to attend at the time and place named in the summons is guilty of a contempt..

An Act to authorize the appointment of an interpreter of the Italian language and dialects, in criminal proceedings, in cities, and cities and counties, of one hundred thousand inhabitants.

[Approved March 12, 1885; 1885, 108.]

SECTION 1. In all cities, and cities and counties, of over one hundred thousand inhabitants, where an interpreter of the Italian language is necessary, it shall be the duty of the mayor and police judge of such city, or city and county, and of the superior judge of said city and county, or of the county in which said city is situated, or where there are more judges than one, then it shall be the duty of the presiding judge of said superior court, and the mayor and police judge, to appoint an interpreter of the Italian language, who shall be an Italian, and who must also be able to interpret the Italian dialects into the English language, to be employed in criminal proceedings when necessary, in said cities, or cities and counties.

SEC. 2. The said interpreter shall receive a salary of one thousand five hundred dollars per annum, which shall be paid out of the general fund of such city, or city and county.

SEC. 3. This act shall not repeal any act heretofore made and now in force for the appointment of interpreters, except so much of any act which may conflict with this act in the appointment of Italian interpreters.

SEC. 4. This act shall take effect and be in An interpreter may be a witness to testify what was sworn to at a previous trial: People v. Lee Ah Yute, 60 Cal. 95; and see People v. Ramirez, 56 Id. 534, the court saying: "We know of no reason why a person who is a witness in a case should be disqualified from acting as interpreter at the examination of other witnesses in the case.'

Competency of witness.-An agent is competent to testify as to his authority in the performance of acts for his reputed principal: Tomlinson v. Spencer, 5 Cal. 291. A restriction upon the competency of a witness must be strictly construed, in favor of life, liberty, and public justice: People v. Awa, 27 Id. C38. The tendency of modern decisions with reference to the competency of witnesses is to relax rather than to extend the rule of exclusion: Smith v. Richmond, 19 Id. 476. Where two persons are jointly indicted, and are tried separately, each defendant is a competent witness for his co-defendant: People v. Newberry, 20 Id. 439. A party who objects to a witness called by the opposite party on the ground of incompetency may adopt either of two modes to show that incompetency. He may examine the witness

force from and after its passage.

upon his voir dire as to the alleged incom petency, or he may object to the witness on the ground of the incompetency, and prove it by other witnesses: People v. Anderson, 26 Id. 129. Where a witness stated that he did not understand the "obligation of an oath," and thereupon the judge explained it to him, and he was allowed to testify: Held, that he was competent to be a witness: Fuller v. Fuller, 17 Id. 605. No person is held incompetent to be a witness in this state on account of his opinions on matters of religious belief. The common-law rule in this respect is abrogated: People v. Sanford, 43 Id. 29. Where the deposition of a witness is taken, objections to his competency must be taken at the time, and not reserved till the trial, or they will be deemed waived: Jones v. Love, 9 Id. 68. A witness who has a very imperfect knowledge of the language employed in the conversation, and who did not understand the whole of the conversation in which the supposed confession was made by the accused, is incompetent to testify as to such confession: People v. Gelabert, 39 Id. 663; see Code Civ. Proc., sec. 1879, supra.