California Charles Howard Fairall.

Criminal law and procedure of California including the penal code of California online

. (page 66 of 77)
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stantially 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.

Given under my hand this — day of , A. D. eighteen

, G H, justice of the peace, [or **J K, district attor-
ney," 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 sub-
poena: "And you are required, also, to bring with you the
following" [describing Intelligibly the books, papers, or doc-
uments required!.



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717 COMPELLING ATTENDANCE OF WITNESSES. 1328-1335

Subpoena, by whom and how served.

1328. A subpoena may be served by any person, bul a peace
officer must serve In his county any subpoena delivered to him
foi" 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 person-
ally and informing him of Its contents.

Expenses of witness from without the county, or poor.

1329. When a person attends before a magistrate, grand jury,.
or court, as a witness in a criminal case, upon a subpoena 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 dis-
cretion, 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 treasurer in favor of witness
for a reasonable sum, to be specified in the order, for the nec-
essary expenses of the witness. [Amendment, approved March
8, 1876; amendments 1875-6, p. 117. In effect In sixty days.j

64 Cal. 244; 109 Cal. 33*; 130 Cal. 676.

Attendance of witness residing or served out of the county.

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, p. 34. In effect April 12, 1880.]

70 Cal. 205: 132 Cal. 305.

Disobedience to subpoena, etc

1331. Disobedience to a subpoena, or a refusal to be sworn or
to testify as a witness, may be punished by the court or magis-
trate as a contempt. A witness disobeying a subpoena issued
on the part of the defendant, unless he show good, cause for his
nonattendance, is liable to the defendant in the rum of one
hundred dollars, which may be recovered in a civil action.

Failure to appear, undertal<ing forfeited.

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.

Temporary removal of imprisoned witness.

1333. When the testimony of a material witness for the peo-
ple 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



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1335-1338 PENAL CODE, 718

upon the affidavit of th© 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 wit-
ness, 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, p. 123. In effect April 1, 1878.]

82 Cal. 457.

CHAPTER IV.
EXAMINATION OF WITNESSES CONDITIONALrLY.

6ec. l.'^35. Witnesses examined conditionally for the defendant.

1336. In what cases defendant may apply for the order.

1337. Application, how made.
13^^. ApDllcation, to whom made.

1339. Order, when granted and what to contain.

1340. Examination in absence of district attorney.

1341. If facts disproved, examination not to proceed.

1342. Attendance of witness, how enforced.

1343. Testimony, how taken and anthenticated.

1344. Deposition to be transmitted to clerk.

1345. When may be read in evidence. Objections, etc.

1346. Deposition of witness imprisoned In another connty.

Witnesses examined conditionally for the defendant.

1335. When a defendant has been held to answer a charge
for a public offense, he may, either before or after an indict-
ment or information, have witnesses examined conditionally,
on his behalf, as prescribed in this chapter, and not otherwise.
[Amendment, approved April 9, 1880; amendments 1880, p. 27.
In effect April 9, 1880.]

In what cases defendant may apply for the order.

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.

M Cal. 896; 82 Cal. 463.

Application, how made.

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 tes-
timony 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.

82 Cal. 463.

Application, to whom made.

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 ISSO, p. 5. In effect March 12, 1880.1



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719 EXAMINATION OP WITNESSES. 1339-1346

Order, when granted and what to contain.

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.

Examination In absence of district attorney.

1340. The order must direct that the examination be taken
before a magistrate named therein, and on proof being fur-
nished 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.

If facts disproved, examination not to proceed.

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
0^ the witness, that he is not about to leave tne 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.

Attendance of witness, how enforced.

1342. The attendance of the witness may be enforced by a
subpoena, issued by the magistrate before whom the examination
is to be taken.

Testimony, how taken and authenticated.

1343. The testimony given by the witness must be reduced
to writing, and authenticated in the same manner as the tes-
timony of a witness taken in support of an information.

Deposition to be transmitted to clerk.

1344. The deposition taken must, by the magistrate, be sealed
up and transmitted to the clerk of the court In which the action
is pending or may come for trial.

When may be read in evidence. Objections, etc.

1345. The deposition, or a certified copy thereof, may be read
in evidence by either party on the trial, upon its appearing that
the witness is unable to attend, by reason of his death, insanity,
sickness, or infirmity, or of his continued absence from the
state. Upon reading the deposition in evidence, the same
objections may be taken to a question or answer contained
therein as if the witness has been examined orally in court.

75 Cal. 308; 108 Cal. 445.

Deposition of witness imprisoned in another county.

1346. When a material witness for a defendant, under a
criminal charge, is a prisoner in the state prison, or in the
county Jail of a county other than that in which the defendant
is to be tried, his deposition may be taken, on behalf of the
defendant, in the manner provided for in the case of a witness
who is sick, and the provisions of the Penal Code, commencing
with section thirteen hundred and thirty-five and ending with
section thirteen hundred and forty-five, shall, so far as applicable,
govern in the application for and in the taking and use of such
deposition. Such deposition may be taken before any magistrate
or notary public of the county in which the Jail or prison is
situated; or in case the witness is confined in the state prison.



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1349-1353 PENAL CODE. 720

and the defendant is unable to pay for taking the deposition,
before the warden or clerk of the board of directors of the state
prison, whose duty it shall be to act without compensation. ETrery
officer, before whom testimony shall be taken by virtue hereof,
shall have authority to administer, and shall administer, an
oath to the witness that his testimony shall be the truth, the
whole truth, and nothing but the truth. [Amendment, approved
April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.]

92 Cal. 457.



CHAPTER V.
EXAMINATION OF WITNESSES ON COMMISSION.

Sec. 1349. Examination of witness residing out of the state.

1350. When defendant may apply for an order to examine.

1351. CommissIoM defined.

1352. Appllcatia^ made on affidavit.

1353. Application, tpy^¥l\om made.

1354. Order for comd^BjNfi, wlien granted, stay of proceeding!.
1356. Interrogations, howyfQtled and allowed.

1356. Direction as to the ^yti/Bu of the commission.

1357. Commission, how execut44i/^^
'^ v*^/*<L a



1358. Returned commission, deliv^B^/^&i^ agent.

1359. Same. ' dl

1360. When and how filed. ^^^



1361. Commission and return, open for inapectlon. Copies, etc.

1362. Depositions to be read In evidence. Objections.

Examination of witness residing out of the state.

1349. When an issue of fact is joined upon an indictment or
information, the defendant may have any material witness,
residing out of the state, examined in his behalf, as prescribed
in this chapter, and not otherwise. [Amendment, approved
April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.j

84 Cal. 26.

When defendant may apply for an order to examine.

1350. When a material witness for the defendant resides
out of the state, the defendant may apply for an order that the
witness be examined on a commission.

Commission defined.

1351. 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 Interrogatories annexed thereto, to take
and certify the deposition of the witness, and to return It
according to the directions given with the commission.

Application made on affidavit.

1352. The application must be made upon affidavit, stating:

1. The nature of the offense charged;

2. The state of the proceedings In the action, and that an
issue of fact has been Joined therein;

3. The name of the witness, and that his testimony la
material to the defense of the action;

4. That the witness resides out of the state.

Application, to whom made.

1353. The application may be made to the court, or a judge
thereof, and must be upon three days* notice to the district
attorney. [Amendment, approved March 12, 1880; amendmentB
1880, p. 6. In effect March 12, 1880.]



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721 EXAMINATION OF WITNESSES. 1364-135T

Order for commission, when granted, stay of proceedings.

1354. If the court to whom the application is made is sat-
isfied of the truth of the facts stated, and that the elaminatlon
of the witness is necessary to the attainment of Jusice, an order
must he made that a commission he issued to take his testimony;
and the court may insert in the order a direction that the tria^
he stayed for a specified time, reasonably sufficient for the
execution and return of the commission. [Amendment, approved
April 9, 1880; amendments 1880, p. 28. In effect April 9, 1880.]

84 Cal. 26: 108 Cal. 11.

Interrogations, how settled and allowed.

1^55. When the commission is ordered, the defendant must
serve upon the district attorney, without delay, a copy of the
Interrogatories to be annexed thereto, with two days' fiotice of
the time at which they will be presented to the court or Judge.
The district attorney may in like manner serve upon the defend-
ant or his counsel cross-interrogatories, to be annexed to the
commission, with the like notice. In the interrogatories either
party may insert any questions pertinent to the issue. When
the interrogatories and cross-interrogatories are presented to
the court or Judge, according to the notice given, the court or
Judge must modify the questions so as to conform them to the
rules of evidence, and must indorse lipon them his allowance
and annex them to the commission.

Direction as to the return of the commission.

1356, Unless the parties otherwise consent, by an indorse-
ment upon the commission, the court or Judge must indorse
thereon a direction as to the manner in which it must he
returned, and may, in his discretion, direct that it be returned
by mail or otherwise, addressed to the clerk of the court In
which the action Is pending, designating his name and the place
where his ofllce is kept.

Commission, how executed.

1357. The commissioner, unless otherwise specially directed,
may execute the commission as follows:

First — He must publicly administer an oath to the witness
that his answers given to the interrogatories shall be the truths
the whole truth, and nothing but the truth.

Second — He must cause the examination of the witness to he
reduced to writing and subscribed by him.

Third — He must write the answers of the witness as near as
possible in the language in which he gives them, and read to him
each answer as it is taken down, and correct or add to it until
it conforms to what he declares is the truth.

Fourth — If the witness decline answering a question, that fact,
with the reason assigned by him for declining, must be stated.

Fifth — If any papers or documents are produced before him
and proved by the witness, they, or copies of them, must be an-
nexed to the deposition subscribed by the witness and certified
by the commissioner.

Sixth — ^The commissioner must subscribe his name to each
sheet of the deposition, and annex the deposition, with the pa-
pers and documents proved by the witness, or copies thereof, to
the commission, and must close it up under seal, and address H,
as directed by the indorsement thereon.



CRIMC« - 46



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1358-1362 PENAL CODE. 722

Seventh — If there be a direction on the commission to return It
hj mail, the commissioner must immediately deposit it in the
nearest post oflace. If any other direction be made by the written
■consent of the parties, or by the court or Judge, on the com-
mission, as to its return, the commissioner must comply with
the direction.

A copy of this section must be annexed to the commission.
[Amendment, approved March 30, 1874; amendments 1873-4, p.
451. In effect July 1, 1874.J

Returned commission, delivered to an agent.

1358. If the commission and return be delivered by the com-
missioner to an agent, he must deliver the same to the cl^rk
to whom it is directed, or to the judge of the court. in which the
action is pending, by whom it may be received and opened, upon
the agent making affidavit that he received it from the hands
of the commissioner, and that it has not been openea or altered
since he received it. [Amendment, approved, April 9, 1880;
amendments 1880, p. 28. In etiect April 9, 1880.]

Same.

1359. If the agent is dead, or from sickness or other casualty
unable personally to deliver the commission and return, aa
prescribed in the last section, it may be received by the clerk or
Judge from any other person, upon his making an affidavit that
he received it from the agent; that the agent is dead, or from
sickness or other casualty unable to deliver it; that it has not
been opened or altered since the person making the affidavit
received it; and that he believes it has not been opened or
altered since it came from the hands of the commissioner.

When and how filed.

1360. The clerk or Judge receiving and opening the com-
mission and return must immediately file it with the affidavit
mentioned in the last two sections, in the office of the clerk
of the court in which the indictment is pending. If the com-
mission and return is transmitted by mail, the clerk to whom
it is addressed must receive it from the post office, and open
and file it in his office, where it must remain, unless otherwise
directed by the court or Judge.

Commission and return, open for inspection. Copies, etc

1361. The commission and return must at all times be open
to the inspection of the parties, who must be furnished by the
clerk with copies of the same or of any part thereof, on pay-
ment of his fees.

Depositions to be read in evidence. Objections.

1362. The depositions taken under the commission may be
read in evidence by either party on the trial, upon it being
shown that the witness is unable to attend from any cause
whatever; and the same objections may be taken to a question in
the interrogatories or to an answer in the reposition, as if the
witness had been examined orally in court



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723 INQUIRY INTO INSANITY. 1367-1370

CHAPTER VI.

INQUIRY INTO THE INSANITY OF THE DEPENDANT

BEFORE TRIAL OR AFTER CONVICTION.

Sec. 1367. Insane person cannot be tried, or punished.

1368. Doubts as to sanity of the defendant, how determined. Stay

of proceedings on.

1360. Trial of the question of Insanity. Charge of the court.

1370. Verdict of the Jury as to sanity, and proceedings thereon.

1371. If defendant is committed, It exonerates his bail, etc.

1372. Defendant detained in asylum until hv becomes sane.

1373. Expense of sending, etc., defendant to asylum.

Insane person cannot be tried, or punished.

1367. A person cannot be tried, adjudged to punishment, or
punished for a public offense, while he is insane.

106 Cal. 840; 106 Cal. 56; 126 Cal. 616; 128 Cal.
427; 129 Cal. 331.

Doubts as to sanity of the defendant, how determined. Stay
of proceedings on.

1368. When an action is called for trial, or at any time during
the trial, or when the defendant is brought up for judgment on
conviction, if a doubt arise as to the sanity of the defendant,
the court must order the question as to his sanity to be sub-
mitted to a jury; and the trial or the pronouncing of the
judgment must be suspended until the question is determined
by their verdict, and the trial jury may be discharged or
retained, according to the discretion of the court, during the
pendency of the issue of insanity. [Amendment, approved April
9, 1880: amesdments 1880, p. 28. In effect April 9, 1880.]

67 Cal. 3K0: 85 Cal. 301; 106 Cal. 51; 116 Cal.
441; 126 Cal. 616; 126 Cal. 426; 132 Cal. 305.

Trial of the question of Insanity. Charge of the court.

1369. The trial of the question of insanity ^pust proceed In
the following order:

1. The counsel' for the defendant must open the case and
offer evidence in support of the allegation of insanity;

2. The counsel for the people may then open their case
and offer evidence in support thereof:

3. The parties may then respectively offer rebutting tes-
timony only, unless the court, for good reason in furtherance
of justice, permit them to qffer evidence upon their original
cause;

4. When the evidence is concluded, unless the case is sub-
mitted to the jury on either or both sides without argument,
the counsel for the people must commence, and the defendant
or his counsel may conclude the argument to the jury;

5. If the indictment be for an offense punishable with death,
two counsel on each side may argue the cause to the jury, in
which case they must do so alternately. In other cases the
argument may be restricted to one counsel on each side;

6. The court must then charge the jury, stating to them
all matters of law necessary for their information in giving their
verdict.

106 Cal. 340; 126 Cal. 616; 126 Cal. 426.

Verdict of the jury as to sanity, and proceedings thereon.

1370. If the jury find the defendant sane, the trial must pro-
ceed, or judgment be pronounced, as the case may be. If the
jury find the defendant insane, the trial or judgment must be



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137M378 PENAL CODE. 724

suspended until he becomes sane, and the court must order that
he be In the meantime committed by the sheriff to the state
Insane asylum, and that upon his becoming sane he be redelivered
to the sheriff. [Amendment, approved April 9, 1880; amend-
ments 1880, p. 2i. In effect April 9, 1880.]

126 Cal. Il7; 129 Cal. 331.

If defendant Is committedi it exonerates hie bail, etc

1371. The commitment of the defendant, as mentioned in the
last section, exonerates his bail, or entitles a person, authorized
to receive the property of the defendant, to a return of any
money he may have deposited instead of bail.

Defendant detained in asylum until he becomes aane.

1372. If the defendant is received into the asylum, he must
be detained there until he becomes sane. When he becomes
sane, the superintendent must give notice of that fact to the
sheriff and district attorney of the county. The sheriff must
thereupon, without delay, bring the defendant from the asylum,
and place him in prope^ custody until he is brought to trial or
Judgment, as the case may be, or is legally discharged.

129 Cal. 3S1.

Expense of sending, etc., defendant' to asylum.

1373. The expenses of sending the defendant to the asylum,
of keeping him there, and of bringing him back, are in the first
instance chargeable to the county in which the indictment was
found, or information filed; but the county may recover them
from the estate of the defendant, if he have any, or from a
relative, town, city, or county bound to provide for and main-
tain him elsewhere. [Amendment, approved April 9, 1880;
amendments 1880, 29. In effect April 9, 1880.]

126 Cal. 616; 129 Cal. 331.



CHAPTER VII.

COMPROMISING CERTAIN PUBUC OFFENSES BY LEAVE

OF THE COURT.

Sec. 1377. Compromise of offenses for whicli civil action may be had.

1378. Compromise by permission of the court bars another pros-

ecution.

1379. No public offense to be compromised except.

Compromise of offenses for which civil action may be had.

1377. When a defendant is held to answer on a charge of
misdemeanor, for which the person injured by the act con-
stituting the offense has a remedy by a civil action, the offense
may be compromised as provided in the next section, except
when it is committed:

1. By or upon an officer of Justice, while in the execution of
the duties of his office;

2. Riotously;

3. With an intent to commit a felony.

Compromise by permission of the court bars another pros-
ecution.

1378. If the party injured appears before the court to which



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 66 of 77)