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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 necessary expenses of the witness.

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.

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.

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.

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. Desty, Cal. Penal Code, §§ 1326-1333.

$194. Writ of Habeas Corpus may Issue when.-The attend

ance of a witness in prison may be secured by a habeas corpus ad testificandum. See Rex v. Roddam, Cowp. 672; State v. Kennedy, 20 Iowa, 569. To this writ it is ordinarily a prerequisite that the party desiring the attendance of a witness should make affidavit before a judge at chambers that the witness in question is material to the case, but is in custody, whether on criminal or civil process. Chitty, Forms, 60; Marsden v. Overbury, 18 C. B. 34; Gordon's Case, 2 Maule & S. 582; Browne v. Gisborne, 2 Dowl. N. S. 963; Graham v. Glover, 5 El. & Bl. 591. A party to the record, who is entitled to testify in the case, if he be in prison, is entitled to use this writ in order that he himself may be brought into court. Ex parte Cobbett, 4 Jur. N. S. 145. The same writ has been issued to secure the presence in court of a person confined as a lunatic. Fennell v. Tait, 1 Cromp. M. & R. 584; Whart. Crim. Ev. (9th ed.) § 351. See also Maxwell v.Rives, 11 Nev. 213.

CHAPTER XXIX.

COMPETENCY AND CREDIBILITY OF WITNESSES.

§ 195. The Term Defined.

196. Competency Generally Presumed.

197. General Abrogation of Former Disqualifying Laws.
198. New York and California Rules Relating to the Subject.

199. Theory of Chief Justice Appleton.

200. Exceptions to the General Rule.
a. Husband and Wife.

b. Exception Arising from Lunacy or Intoxication.
c. Exception as to Deaf Mutes.

d. Exception as to Infancy.

e. Summary of the Foregoing Exceptions. 201. Credibility of Witnesses is for the Jury. 202. Effect of False Testimony on Credibility.

§ 195. The Term Defined.-A witness is one who, being sworn or affirmed, according to law, deposes as to his knowledge of facts in issue between the parties in a cause. Bouvier, Law Dict. title Witness.

§ 196. Competency Generally Presumed.-All persons are competent to testify in all cases except as hereinafter excepted. Stephen, Dig. art. 106.

The principle above stated as to the general competency of all persons, for the witness stand has obtained wide acknowledgment and found expression in statutory enactments in all the American states. Of the thirty-one states now under the code system, the rule as formulated by the codes of California and New York, may be taken as a type of the present law which finds expression in the first named code in the following language: "All persons without exception, who, having organs of sense, can perceive, and perceiving, can make known their perceptions 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 ques

tion, as provided in Cal. Code Civ. Proc. 1879, § 1847; N. Y. Penal Code, § 714.

In People v. McGuire, 45 Cal. 57, the broad principle was affirmed by an undivided court, "that no witness can be excluded in any case on account of nationality or color," and one who has been convicted of felony may testify. People v. McLane, 60 Cal. 412. And the presumption is that all witnesses are both competent and credible, but, if the contrary should be claimed it is exclusively the province of the court to determine the validity of the objection. State v. Lattin, 29 Conn. 389; Peterson v. State, 47 Ga. 524; State v. Scanlan, 58 Mo. 204; State v. Whittier, 21 Me. 341, 38 Am. Dec. 272; Com. v. Burke, 16 Gray, 33; State v. Levy, 5 La. Ann. 64; Brown v. State, 24 Ark. 620; State v. Holloway, 8 Blackf. 45.

Under these liberal enactments the judge may be a witness. And it is said that he may be so, even although he is the judge to try the cause. A juror, however, may be a witness, either for or against the prisoner and must be sworn as such, but it is right that he should inform the court of his having evidence to give in the case, before he is sworn as juror, and, indeed, to decline acting as a juror in the case, if the court will permit him. Archb. Crim. Pr. & Pl. p. 150.

A marginal note to the above paragraph in Pomeroy's edition of the well known work above cited, says: "A juror may give evidence of any fact material to be communicated in the cause of a trial. In a criminal prosecution, the jury may use that general knowledge which any man may bring to the subject-matter of the indictment, without being sworn. But, if any one of the jurors has a particular knowledge on the subject-as for instance, as to the value of a watch in a case where it is essential to prove what it is worth-he ought to be sworn and examined as a witness. Rex v. Rosser, 7 Car. & P. 648; McKain v. Love, 2 Hill, L. 506, 27 Am. Dec. 401.

"A juror may be admitted to prove improper attempts by a party to influence the minds of a jury. Denn v. Driver, 1 N. J. L. 166. So, also, to show the misconduct of his fellow jurors, in order to impeach their verdict. State v. Freeman, 5 Conn. 348."

A delicate question arises, where, in the furtherance of justice it becomes necessary for the defendant to produce, as a witness, the presiding judge. Such cases are rare, but by no means im

possible. A decision of the New York supreme court in 1854 is instructive. In the course of the trial, the defendant offered as a witness in his behalf the Hon. Harvey Humphrey, county judge of Monroe county. It was objected on the part of the prosecution that Judge Humphrey, being a member of the court, could not be sworn as a witness. The objection was sustained, and the defendant excepted. Judge Welles in writing the opinion of the court, says: "We think this decision was correct. The court could not be held without the county judge, and it would have broken up the court for the time being for him to take his stand as a witness. He could not act in the double capacity at one and the same time of judge and witness. To make this apparent, it is only necessary to suppose a claim of privilege by the witness in regard to answering a question put to him, or his refusal to answer a question which his associates of the court decide he is bound to answer, with a motion for his commitment, as being in contempt, until he should answer, or of evidence introduced to contradict or impeach him. Such things are possible in the nature of the case." People v. Miller, 2 Park. Crim. Rep. 197.

"The prosecuting attorney is not bound by any oath of secrecy; and certainly we know of no sufficient reason why he may not be called upon, in a court of justice, to disclose any evidence given, or proceedings had, before the grand jury, of which he may have personal cognizance. It is said that it is contrary to public policy to allow the defendant in a criminal case to call upon the prosecuting attorney as a witness in a court of justice, to disclose any evidence given, or proceedings had, before the grand jury. We fail to see the matter in that light. In our opinion, public policy does not require that any citizen should be convicted of a public offense by means of doubtful evidence. Where the principal witness for the state has made statements under oath before the grand jury in regard to the transaction upon which the criminal charge is predicated, which statements cannot be reconciled with the evidence of the witness on the trial, and this is personally known to the prosecuting attorney, it seems to us that neither his official duty nor public policy would require that he should withhold his evidence of the fact when called upon by the defendant to testify as to the fact, and seek a conviction of the defendant upon evidence which, from the facts within his personal knowledge, he had reason to believe was at least doubtful." Burdick v. Hunt, 43 Ind. 381.

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