not to answer is personal to the witness, and is not in any sense the privilege of the party calling him: Clark v. Reese, 35 Id. 89. He must assert his privilege at the proper time, and it is not the duty of the court, independently of any objection on the part of the witness, to inform him that he is not obliged to criminate himself: People v. Hackley, 24 N. Y. 83; Commonwealth v. Shaw, 4 Cush. 594. If he discloses a part of the transaction with which he was criminally concerned, without claiming his privilege, he must disclose the whole. He cannot, after voluntarily testifying in chief, decline to be cross-examined, on the ground that his answers may criminate or disgrace him: People v. Freshour, 55 Cal. 375; Norfolk v. Gaylord, 28 Conn. 309; People V. Carroll, 3 Park. Cr. 73; Commonwealth v. Price, 10 Gray, 472. A defendant who offers himself as a witness waives his right to refuse to furnish evidence against himself, and is subject to an examination on all facts material to the issue: Commonwealth v. Mullen, 97 Mass. 545. Where a statute provides that a witness shall be compelled to testify in certain cases, notwithstanding his testimony may tend to criminate himself, but that such testimony shall not afterwards be used against him, he may be compelled to so testify, notwithstanding the constitutional provision that no person shall be compelled to be a witness against himself. The fact that detailing a precise account of the circumstances of a given crime would afford the prosecutor some facilities for fastening the guilt upon the actual offender makes no difference: People v. Hackley, 24 N. Y. 83. "The possession of the circumstances might point out to him [the prosecutor] sources of evidence which he would otherwise be ignorant of, and in this way the witness might be prejudiced. But neither the law nor the constitution is so sedulous to screen the guilty as the argument supposes. If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his own guilt apparent, or at least capable of proof, though his account of the transactions should never be used as evidence, it is the misfortune of his condition, and not any want of humanity in the law. If a witness objects to a question, on the ground that an answer would criminate himself, he must allege in substance that his answer, if repeated as his admission on his own trial, would tend to prove him guilty of a criminal offense. If the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by positive statute, I have seen no authority which holds or intimates that the witness is privileged. It is not within any reasonable construction of the language of the constitutional provision. The term 'criminal case' used in the clause must be allowed some meaning, and none can be conceived other than a prosecution for a criminal offense. But it must be a prosecution against him; for what is forbidden is that he should be compelled to be a witness against himself. Now, if he be prosecuted criminally touching the matter about which he has testified upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It cannot therefore be said that in such criminal case he has been made a witness against himself by force of any compulsion used towards him to procure, in the other case, testimony which cannot possibly be used in the criminal case against him:" Per Denio, J., in People v. Hackley, supra. Accomplice as witness: Sec. 1111, note. Attendance of witnesses: Secs. 1326, 1333. Co-defendant as witness: Sec. 1100, note. Co-defendant as witness for the people: Sec. 1099, note. Contradictory statements: Sec. 1102, note. Interpreter, when sworn: Code Civ. Proc., sec. 1884, supra. Juror as witness: Sec. 1120, note; Code Civ. Proc., sec. 1883, supra. Rules of examination of witnesses: Code Civ. Proc., secs. 2042-2054. Separation and exclusion of witnesses: Sec. 1102, note. Witness defined: Code Civ. Proc., sec. 1878, supra. Witness, duties and rights of: Code Civ. Proc., secs. 2042-2054. Witness, who competent to be: Code Civ. Proc., sec. 1879, supra. Witness, who incompetent to be: Code Civ. Proc., sec. 1880, supra. 1322. Husband and wife, when not competent witnesses. SEC. 1322. Except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties. [Amendment, approved March 30, 1874; Amendments 1873-4, 451; took effect July 1, 1874.] Husband or wife as witness: See Code Civ. Proc., sec. 1881, subd. 1, and same section in note to sec. 1321, ante. A party to an action, by the examination of her husband as a witness on her behalf, waives her objection to his examination by the opposite party upon any of the issues in the action: Steinburg v. Meany, 53 Cal. 425. In ordinary cases, proof that a man and woman cohabited a long time as husband and wife, mingled in society as such, and represented each other as such, is, in absence of evidence to the contrary, sufficient proof of a marriage between the parties: People v. Anderson, 26 Id. 129. A woman living with defendant as his wife, but not married to him, is a competent witness against him: People v. Alviso, 55 Id. 230. Declarations of a wife made to a third person are not admissible as evidence against her husband: People v. Simonds, 19 Id. 276. But evidence of acts and exclamations of the prisoner's wife at the time of the killing, and in his presence or hearing, are admissible: People v. Murphy, 45 Id. 143. When two parties are jointly indicted, but tried separate ly, the wife of one may be a witness for or against the other, if her husband cannot be benefited or injured by her testimony: State v. Waterman, 1 Nev. 543. But this section simply applies to the case where the husband or wife is a party; where two persons are charged by separate information with the same offense, one is entitled to call the wife of the other who is not on trial, and question her concerning matters impli cating her husband: People v. Langtree, 64 Cal. 256. See an article in 3 Crim. Law Mag. 155, on the departures from the common-law rule rendering husband and wife incompetent to testify against each other. 1323. Defendant as witness, neglect or refusal not to prejudice. SEC. 1323. A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offer himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any manner prejudice him, nor be used against him on the trial or proceeding. [Amendment, approved March 30, 1874; Amendments 1873-4, 451; took effect July 1, 1874.] "In People v. Anderson, July term, 1870, says Justice Temple, speaking for the court: 'The defendant is not called upon to offer himself to prove any fact in the case, nor can any presumption be properly indulged against him for not doing so.' This chapter is founded upon sections 13, 14, and 15, of the crimes and punishment act of 1850, as they were subsequently amended: Stats. 1855, 105; 1863, 69; an act authorizing husband and wife to become witnesses, etc.: Stats. 1866, 46; an act relating to criminal prosecutions: Stats. 1866, 865; and an act supplementary to the crimes and punishment act of 1850: Stats. 1868, 49. Kindred provisions were, under the former arrangement of our statutes, embodied in the crimes and punishment act; but it is believed that their appropriate place is in that portion of the work relating to criminal procedure, hence the commissioners so placed them: See note to sec. 1102, and cases there cited:" Commissioners' note. Defendant as a witness.-See a valuable article in 4 Crim. Law Mag. 323. "No person shall.... be compelled, in any criminal case, to be a witness against himself: Const. Cal., art. 1, sec. 13; U. S. Const., amend. 5. The right of defendant to be examined in his own behalf is one which he may exercise or not, and no presumption can be properly indulged in against him for his not doing so: People v. Anderson, 39 Cal. 703. The fact that defendant becomes a witness in his own behalf does not change or modify the rules of practice, with reference to the proper limits of crossexamination, and does not make him a witness for the state against himself: People v. McGungill, 41 Id. 429. Where defendant is examined as a witness in his own behalf, the prosecution is entitled to cross-examine him respecting an occurrence about which he testified in chief: 1. For the purpose of showing 296 express malice; and 2. In order to lay a foundation to impeach his credibility: People v. Dennis, 39 Id. 625. If he become a witness in his own behalf, he has the same and no greater privileges than any other witness. He may refuse to answer a question when the answer would tend to degrade his character: People v. Reinhart, Id. 449; People v. Johnson, 57 Id. 571. His general reputation for truth, honesty, and integrity may be shown: People v. Beck, 58 Id. 212. A defendant who becomes a witness in his own behalf, and undertakes to state all that transpired between two points of time, may be asked on cross-examination if he has omitted anything pertinent to the case, and his attention may be directed to the precise point by asking him if some specified thing did not occur: People v. Russell, 46 Id. 121. If defendant at the preliminary examination voluntarily becomes a witness in his own behalf, and if it appear that his testimony there given was free from undue influence, it may be used against him on his subsequent trial: People v. Kelley, 47 Id. 125; People v. Họng Ah Duck, 61 Id. 387, 394. The failure to become a witness in his own behalf is not a circumstance to be considered by the jury as tending to establish the guilt of defendant, and it is error to permit counsel so to argue against the objections of defendant: People v. Brown, 53 Id. 66; People v. McGungill, 41 Id. 429; People v. Tyler, 36 Id. 522; see also People v. McCauley, 45 Id. 146; People v. Rodundo, 44 Id. 538; People v. Bruzzo, 24 Id. 41; sec. 688, note. Court commenting on defendant's be coming a witness.-That the court may call the attention of the jury to the defendant's position and tell them to consider it in determining his credibility: People v. Morrow, 60 Cal. 142, 147; People v. Cronin, 34 Id. 195, 203; People v. Nichols, 62 Id. 518, 522; and see S. C., 34 Id. 211. CHAPTER III. COMPELLING THE ATTENDANCE OF WITNESSES. 1326. Subpoena defined, who may issue. SEO. 1326. The process by which the attendance of a witness before a court or magistrate is required is a subpœna; it may be signed and issued by: 1. A magistrate before whom a complaint is laid, for witnesses in the state, either on behalf of the people or of the defendant; 2. The district attorney, for witnesses in the state, in support of the prosecution, or for such other witnesses as the grand jury, upon an investigation pending before them, may direct; 3. The district attorney, for witnesses in the state, in support of an indictment or information, to appear before the court in which it is to be tried; 4. The clerk of the court in which an indictment or information is to be tried; and he must, at any time, upon application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him as clerk, for witnesses in the state, as the defendant may require. [Amendment, approved April 9, 1880; Amendments 1880, 27 (Ban. ed. 174); took effect immediately.] Subpœna defined: Code Civ. Proc., sec. 1985. 1327. Form of subpœna. SEC. 1327. A subpoena authorized by the last section must be substantially in the following form: The people of the state of California to A B: You are commanded to appear before C D, a justice of the peace of township, in county (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. day of —, A. D. eighteen Given under my hand this G H, justice of the peace (or "J K, district attorney," or " By order of the court, L M, clerk," or as the case may be). If books, papers, or documents are required, a direction to the following effect must be contained in the subpoena: "And you are required, also, to bring with you the following" (describing intelligibly the books, papers, or documents required). 1328. Subpoena, by whom and how served. SEC. 1328. A subpoena may be served by any person, but a peace-officer must serve in his county any subpoena delivered to him for service, either on the part of the people or of the defendant, and must, without delay, make a written return of the service, subscribed by him, stating the time and place of service. The service is made by showing the original to the witness personally, and informing him of its contents. Subpoena, how served in civil cases: Code Civ. Proc., sec. 1987. 1329. Payment of expenses of witness when from without county, or poor. SEC. 1329. When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, upon a subpœna or in pursuance of an undertaking, and it appears that he has come from a place outside of the county, or that he is poor and unable to pay the expenses of such attendance, the court, at its discretion, if the attendance of the witness be upon a trial, by an order upon its minutes, or, in any other case, the judge at his discretion, by a written order, may direct the county auditor to draw his warrant upon the county treas urer in favor of witness for a reasonable sum, to be specified in the order, for the necessary expenses of the witness. [Amendment, approved March 8, 1876; Amendments 1875-6, 117; took effect sixtieth day after passage.] 1330. Witness residing or served with subpoena out of the county, how compelled to attend. SEC. 1330. No person is obliged to attend as a witness before a court or magistrate out of the county where the witness resides, or is served with the subpoena, unless the judge of the court in which the offense is triable, or a justice of the supreme court, or a judge of a superior court, upon an affidavit of the district attorney or prosecutor, or 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. [Amendment, approved April 12, 1880; Amendments 1880, 34 (Ban. ed. 201); took effect immediately.] 1331. Disobedience to subpoena, etc. SEC. 1331. Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the court or magistrate as a contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he show good cause for his non-attendance, is liable to the defendant in the sum of one hundred dollars, which may be recovered in a civil action. Contempts: Secs. 1209-1222, Code Civ. Proc. Refusal of witness to answer: Sec. 166, note. 1332. Failure to appear, undertaking forfeited. SEC. 1332. When a witness has entered into an undertaking to appear, upon his failure to do so the undertaking is forfeited in the same manner as undertakings of bail. 1333. Who may order temporary removal of imprisoned witnesses. SEC. 1333. When the testimony of a material witness for the people is required in a criminal action before a court of record of this state, and such witness is a prisoner in the state prison or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, may be made by the court in which the action is pending, or by the judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall only be made upon the affidavit of the district attorney, or other person, on behalf of the people, showing that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of the court or judge. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be paid by the county in which the order shall be made. [New section, approved April 1, 1878; Amendments 1877–8, 123; took effect immediately.] CHAPTER IV. EXAMINATION OF WITNESSES CONDITIONALLY. 1335. Witness to be examined conditionally for the defendant. SEC. 1335. When a defendant has been held to answer a charge for a public offense, he may, either before or after an indictment or information, have witnesses examined conditionally on his behalf, as prescribed in this chapter, and not otherwise. [Amendment, approved April 9, 1880; Amendments 1880, 27 (Ban. ed. 174); took effect immediately.] 1336. In what cases defendant may apply for order. SEC. 1336. 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. Personal attendance of witness.-Where ing the testimony of the witness ought not to an absent witness for defendant in a criminal be forced upon defendant against his will, unaction is sick, and it is made to appear that his der the penalty of going to trial without it: personal attendance can be procured without People v. Dodge, 28 Cal. 445. unreasonable delay, the statutory mode of tak 1337. Application, how made. SEC. 1337. The application must be made upon affidavit, stating: 1. The nature of the offense charged; 2. The state of the proceedings in the action; 3. The name and residence of the witness, and that his testimony is material to the defense of the action; 4. 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. 1338. Application, to whom made. SEC. 1338. The application may be made to the court, or to a judge thereof, and must be upon three days' notice to the district attorney. [Amendment, approved March 12, 1880; Amendments 1880, 5 (Ban. ed. 26); took effect immediately.] 1339. Order, when granted, and what to contain. SEC. 1339. If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and that a copy of the order be served on the district attorney, within a specified time before that fixed for the examination. 1340. On proof of service, if district attorney absent, examination to proceed. SEC. 1340. The order must direct that the examination be taken before a magistrate named therein, and on proof being furnished to such magistrate of service upon the district attorney of a copy of the order, if no counsel appear on the part of the people, the examination must proceed. 1341. If facts on which order founded disproved, examination not to proceed. SEC. 1341. If the district attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the magistrate, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed. 1342. Attendance of witness how enforced. SEC. 1342. The attendance of the witness may be enforced by a subpœna, issued by the magistrate before whom the examination is to be taken. 1343. Testimony, how taken and authenticated. SEC. 1343. The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information. |