1874 When husband are not competent 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. SEC. 1882. If a person offer himself as a witness, that is to be deemed a consent to the examination, also, of a wife, husband, attorney, clergyman, physician, or surgeon on the same subject, within the meaning of the first four subdivisions of the last section. SEC. 1883. (400.) 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. See, also, note to Sec. 1102, ante, and cases there cited. 1322. Except with the consent of both, or in cases and wife of criminal violence upon one by the other, neither husband nor wife are competent witnesses for or against each other in a criminal action or proceeding to which one or both are parties. witnesses. When the defendant is not a competent witness. NOTE.-People vs. Anderson, 26 Cal., p. 129. A restriction upon the competency of a witness must be strictly construed in favor of life, liberty, and public justice. People vs. Awa, 27 Cal., p. 638. 1323. A defendant in a criminal action or proceeding to which he is a party, is not, without his cousent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner prejudice him nor be used against him on the trial or proceeding. NOTE.-In The People vs. 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 Secs. 13, 14, and 15, of the Crimes and Punishment Act of 1850, as they were subsequently anded (Stats. 1855, p. 105; 1863, p. 69); an Act authorizing husband and wife to become witnesses, etc. (Stats. 1866, p. 46); an Act relating to criminal prosecutions (ib., p. 865); and an Act supplementary to the Crimes and Punishment Act of 1850 (Stats. 1868, p. 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. CHAPTER III. COMPELLING THE ATTENDANCE OF WITNESSES. SECTION 1326. Subpœna defined, and who may issue. 1327. Form of subpoena. 1328. Subpoena, by whom and how served. 1329. Payment of the expenses of the witness when he is 1330. Witness residing or served with subpoena out of the 1331. Disobedience to subpoena, etc. 1332. Failure to appear, undertaking forfeited. 1326. (§§ 547, 548, 549, 550, 551.) The process Subpoena 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 an information 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 wit defined, and who may issue. Form of subpoena. Subpoena, by whom and how served. nesses 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, to appear before the Court in which it is to be tried; which an indictment 4. The Clerk of the Court 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. 1327. (§§ 552, 553.) A subpoena authorized by the last section must be substantially in the following form: The People of the State of California to̟ 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 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. (§§ 554, 555.) 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. the expenses of the witness when he is from withcounty or is out the poor. 1329. (§§ 556, 557.) When a person attends be- Payment of fore a magistrate, Grand Jury, or Court, as a witness on behalf of the people, upon a subpoena or pursuant to an undertaking, and it appears that he has come from a place out of the county, or that he is poor, the Court, if the attendance of the witness be upon a trial, by an order upon its minutes, or, in any other case, the County Judge, by a written order, may direct the County Treasurer to pay the witness a reasonable sum, to be specified in the order, for his expenses. Upon the production of the order, or a certified copy thereof, the County Treasurer must pay the witness the sum specified therein, out of the County Treasury. the Witness residing or served with subpoena out of the county,how compelled 1330. (§ 558.) No person is obliged to attend as a witness before a Court or magistrate out of county where the witness resides or is served with the subpœna, unless the Judge of the Court in which the to attend. offense is triable, or a Justice of the Supreme Court, or a County Judge, 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 subpœna an order for the attendance of the witness. ence to subpoena, etc. 1331. (§§ 559, 561.) Disobedience to a subpœna, Disobedi 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 nonattendance, is liable to the defendant in the sum of one hundred dollars, which may be recovered in a civil action. Failure to appear, un forfeited. 1332. (§ 560.) When a witness has entered into an undertaking to appear, upon his failure to do so dertaking the undertaking is forfeited in the same manner as undertakings of bail. Witnesses to be examined condition ally for the defendant, as provided in this Chapter. In what cases defendant may apply for the order. Application, how made. CHAPTER IV. EXAMINATION OF WITNESSES CONDITIONALLY. SECTION 1335. Witnesses to be examined conditionally for the defendant, as provided in this Chapter. 1336. In what cases defendant may apply for the order. 1337. Application, how made. 1338. Application, to whom made. 1339. Order, when granted and what to contain. 1340. On proof of service, if District Attorney be absent, examination must proceed. 1341. If facts on which order was founded be disproved, examination not to proceed. 1342. Attendance of witness, how enforced. 1343. Testimony, how taken and authenticated. 1844. Deposition to be transmitted to Clerk. 1345. When may be read in evidence. Subject to objections, etc. 1335. (§ 562.) When a defendant has been held to answer a charge for a public offense, he may, either before or after an indictment, have witnesses examined conditionally, on his behalf, as prescribed in this Chapter, and not otherwise. 1336. (§ 563.) 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. 1337. (§ 566.) 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. |