that it has been the subject of hot contention in the very recent case before the supreme court of California; and a majority of the court pronounce a rule utterly at variance with principles that have heretofore received as declaratory of a law that antedates the unification of our government. The case referred to is that of Willard v. Santa Barbara County Sup. Ct. 82 Cal. 456, and was decided in 1890. The dissenting opinion of Judge Thornton states the law in language that leaves no room for doubt as to the position occupied by one jurist in that state, on a very important subject. Few questions can more immediately concern that fraction in our community so unfortunate as to be under the accusation of crime, and the extent, nature and scope of their right to produce evidence to relieve the horrors of their position through the media of the court's process. And, while we are not prepared to countenance an indiscriminate excerpting from dissenting opinions by even such an eminent jurist as Judge Thornton has long been known to be, we are constrained to an exception in this instance. The opinion proceeds in the following language: "This process (of subpoena) cannot be denied to the defendant by any power of the state, legislative, executive or judicial. The constitution assures this right to a defendant accused of felony. It needs no statute to confer it. The constitution confers it, and it cannot be taken away by statute.

"The law by its very terms refers only to a witness for the people, not to a witness for the defendant. It grants the right to the defendant to have the deposition of his witness taken, when the witness is confined in the state prison or in the county jail of a county other than that in which the defendant is to be tried, in the manner provided for in the case of a witness who is sick, but he is not bound to have the testimony of the witness so taken. He can waive his constitutional right and have the deposition taken, should he so elect. But it is entirely at his option to have the witness compelled to attend, or to have his testimony taken by deposition. Doubtless the accused would elect to have the deposition taken, if the witness was unable from illness to attend, rather than lose his testimony. The legislature cannot restrict one on trial in a criminal action to having the

of the defendant in criminal actions. No such guaranty is given

to the people.

Convicted felons are now competent witnesses. But as at present advised, we are not prepared to hold that the legislature can enact that a witness, material for the defense of a person accused and on trial for a felony, shall be declared incompetent to testify for the defense. Certain we are that no such legislation will ever be attempted while the constitution remains unchanged. It would be cruel to withhold such testimony from a person tried for an offense which may result in his deprivation of liberty.

"The guaranty that a defendant shall have the process of the court (i. e., a subpoena) to compel the attendance of witnesses in his behalf,' as the guaranties of a speedy and public trial, and to appear and defend in person and with counsel, is assured in the same section of the constitution. Other guaranties are also expressed in the same section. A state legislature cannot deprive defendant of any of these rights.

"It is to the interest of the people, as well as the defendant, that the witnesses of the latter should be made to give their testimony in the presence of the jury, for we all know, by daily experience, how much weight is added to or taken from the testimony by the personal appearance, bearing, and manner of the witness while under examination; if these add to the weight of his testimony, the defendant ought not to be deprived of such effect, except upon the grounds of necessity; and if they detract therefrom, such effect should be secured to the people in order that the ends of public justice may be subserved. Thus this rule requiring the personal attendance of witnesses, if the same can be had, is founded upon considerations of the wisest policy; and the various statutory provisions whereby the defendant is enabled to examine conditionally on commission a witness who is about to leave the state, or is sick or infirm, as to afford reasonable grounds for apprehending that he will be unable to attend the trial, were not designed to impair the rule or abridge the previous rights of the defendant, but, on the contrary, to enlarge those rights by enabling him to secure testimony of which he would otherwise be deprived, and at the same time preserve the rule in full force, so far as the same could be done in view of the right conferred by the statute.' People v. Dodge, 28 Cal. 448. See People v. Francis, 38 Cal. 183; People v. Mitchell, 64 Cal. 85.

"A defendant has the constitutional right to have the witnesses

against him examined in open court and in his presence. By the guaranty of due process of law he has a right to be confronted with the witnesses for the prosecution. The correlative right is given him to have the witnesses in his behalf testify in open

court.

"One further proposition should be stated.

The state

owes equal and exact justice to those under its authority in all proceedings against them. It can have no higher justifiable right as to witnesses than the defendant. Nor should nor does it ask any higher right in this regard. If anything, it should be content with an inferior right. It holds the lists and appoints the president thereof, in which the contest between the people and the defendant on trial is waged. And the defendant might truly say that equal justice has not been done, when the state can com pel the attendance of a witness to prove his guilt, and the defendant cannot compel the attendance of a witness in like circumstances to establish his innocence. Justice, as Lord Coke says, should be free, full, and speedy; free, because nothing is more unjust than justice which has to be bought; full, because justice ought not to halt or be maimed; and speedy, because delay is to some extent a denial of justice. See Coke, Inst.pt. 2, p. 55.

"It should be recollected that a witness brought from the state prison might clearly show the defendant's freedom from guilt. The difference between the living speaking witness before a jury, and the inanimate lines of a deposition, is recognized by all familiar with courts of justice. As is well said in an old act of Parliament of 9 Edward II., styled Articuli Cleri, in referring to a trial by jury: 'We hold, and shall be able to approve it to be a far better course for matter of fact upon the testimony of witnesses, sworn viva voce, than upon the conscience of any one particular man, being guided by paper proofs.' See Coke, Inst. pt. 2, p. 611.

"Especially would this be the case with a convict in prison. brought from a state prison. He comes with the stain of conviction on his credit. But his appearance and manner, under the ordeal in open court of examination and cross-examination, might assuredly show to court and jury that he is a perfectly reliable witness, and establish beyond question the innocence of the person on trial. Should a defendant then be deprived of this right?"

193. Code Provisions on the Subject.

a. Tennessee.-Statutory provisions of the Tennessee Code as contained in §§ 6225-6232, inclusive, are typical of the modern law relative to this subject. The sections referred to provide as follows: "The magistrate before whom an infor mation is made, may issue subpoenas to any part of the state for witnesses, on behalf either of the defendant or the state. The clerk of the court in which a criminal cause is pending, shall issue subœnas, at any time, to any part of the state, for such witnesses as either the district attorney or the defendant may require. He shall also issue a subpoena, without any application, for witnesses, whose names are marked as such by the district attorney upon the indictment. The clerk of the court should make the subpoena returnable on the day fixed by the law, or by the court, for taking up the criminal business of the term, or the particular case. The subpoena is served in the same way and by the same officers as the subpoena in civil cases. If the witness conceal himself to avoid the service of a subpoena, the officer may make service by leaving a copy posted on the door or other conspicuous place. Proceedings may be had against defaulting witnesses in criminal cases, as prescribed in civil cases. The undertaking of recognizance of witnesses is forfeited and enforced like the undertaking and recognizance of bail."

b. Minnesota.-Where the prisoner is admitted to bail, or committed by the magistrate, he shall also bind by recognizance such witnesses against the prisoner as he deems material, to appear and testify at the next court having cognizance of the offense, and in which the prisoner is held to answer.

If the magistrate is satisfied that there is a good cause to believe that any such witness will not perform the condition of his recognizance unless other security is given, such magistrate may order the witness to enter into a recognizance, with such sureties as may be deemed necessary, for his appearance at court.

When any married woman or minor is a material witness, any other person may be allowed to recognize for the appearance of such witness; or the magistrate may, in his discretion, take the recognizance of such married woman or minor in a sum not exceeding fifty dollars.

All witnesses required to recognize, either with or without sureties, shall, if they refuse, be committed to prison by the magistrate

there to remain until they comply with such order, or are otherwise discharged according to law.

It shall not be lawful, except in cases of murder in the first degree, arson, where human life is destroyed, and cruel abuse to children, to commit or imprison any witness who is willing and offers to enter into his or her own recognizance, without sureties, to appear and testify in the case or prosecution in which his or her testimony is required. All persons held as witnesses shall receive such compensation during confinement as the judge of the court in which the case is pending shall direct, not exceeding regular witness fees. 1872, chap. 77, § 1; Minn. Stat. chap. 106, $S 19-23.

c. California. 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 an application of the defendant, and without charge, issue as many blank subpœnaes, subscribed by him as clerk, for witnesses in the state, as the defendant may require.

A subpoena may be served by any person, but a peace officer must serve in his county any subpœna 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.

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 discretion, if the