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ing, they, or either of them, may be examined as witnesses in their own behalf, or in behalf of each other, or in behalf of any of the parties thereto, the same as any other witness; but this section shall not apply to cases of divorce, neither shall any husband or wife be competent or compellable to disclose any communication made to him or her by the other during marriage.(a) [Amendment, approved April 27, 1863, 771.

Attorneys as witnesses.

§ 396. An attorney or counsellor shall not, without the consent of his client, be examined as a witness as [to] any communication made by the client to him, or his advice given thereon, in the course of professional employment. [23 Cal. 331; 29 Cal. 47.]

Clergymen and priests as witnesses.

§ 397.* A clergyman or priest shall not, without the consent of the person making the confession, be examined as a witness as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs.

Physicians and surgeons as witnesses.

§ 398.* A licensed physician, or surgeon, shall not, without the consent of his patient, be examined as a witness as to any information acquired in attending the patient, which was necessary to enable him to prescribe, or act, for the patient; provided, however, in any suit, or prosecution, against

* Applicable to justices' courts, see 620.

(a) The original section excluded husbands and wives as witnesses for or against each other, except in actions by one against another.

a physician, or surgeon, for malpractice, if the patient, or party, suing, or prosecuting, shall give such consent, and any such witness shall give testimony, then such physician, or surgeon, defendant, may call any other physicians, or surgeons, as witnesses, on behalf of defendant, without the consent of such patient, or party, suing, or prosecuting.(a) [Amendment, approved May 8, 1861, 305.

Public officers as witnesses.

§ 399.* A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure.

Judges and jurors as witnesses.

§ 400.* The judge himself, or any juror, may be called as a witness by either party; but in such case it shall be 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.

[2 Cal. 358.]

Interpreters.

§ 401.* When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him. Any person, a resident of the proper county may be summoned by any court or judge to appear before such court or judge to act as interpreter in any action or proceeding. The summons shall be served and returned in like manner as a subpoena. Any person so summoned shall, for a failure to attend at the time and place named in the summons,

* Applicable to justices' courts, see 620.

(a) The original section did not contain the proviso.

be deemed guilty of a contempt, and may be punished accordingly.(a) [Amendment, approved April 25, 1863, 495.

CHAPTER II.

MANNER OF COMPELLING THE ATTENDANCE OF WITNESSES, AND THEIR RIGHTS AND DUTIES.

Subpæna. Subpoena duces tecum.

§ 402.* A subpoena may require not only the attendance of the person to whom it is directed, at a particular time and place, to testify as a witness, but may also require him to bring any books, documents or other things in his control, to be used as evidence. No person shall be required to attend as a witness before any court, judge, justice or any other officer out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial. (a) [Amendment, approved April 28, 1855, 196.

Requirements of subpoena.

§ 403.* The subpoena shall be issued as follows:

First. To require attendance before a court, or at the trial of an issue therein, it shall be issued under the seal of the court before which the attendance is required, or in which the issue is pending.

Second. To require attendance out of the court before a judge, justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this State,

* Applicable to justices' courts, see 620.

a) The original section consisted of the first sentence of the text alone.

it shall be issued by the judge, justice, or any other officer before whom the attendance is required.

Third. To require attendance before a commissioner appointed to take testimony by a court of a foreign country, or of the United States, or of any other state in the United States, or of any other district or county within this State, or before any officer or officers empowered by the laws of the United States to take testimony, it may be issued by any judge or justice of the peace in places within their respective jurisdiction, with like power to enforce attendance, and upon certificate of contumacy to said court to punish contempt of their process as such judge or justice could exercise if the subpoena directed the attendance of the witness before their courts in a matter pending therein.(a) [Amendment, approved April 2, 1866; 1865–6, 701.

Service of subpoena.

§ 404.* The service of a subpoena shall be made by showing the original, and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. Such service may be made by any person.

* Applicable to justices' courts, see 620.

(a) The original section differed from the text in having the words "in the name and " before the words "under the seal of" in the first subdivision; and in the third subdivision, which provided only for attendance before commissioners appointed to take testimony by a court of any other state or county.

It was amended, April 12, 1859, 218, so as to read like the text except having the words "in the name and" as in the original section and omitting the words " or before any officer or officers empowered by the laws of the United States to take testimony."

Concealed witness, service how made.

§ 405.* If a witness be concealed in a building or vessel, so as to prevent the service of a subpoena upon him, any court or judge, or any officer issuing the subpoena, may, upon proof by affidavit of the concealment and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena; and the sheriff shall serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.

Persons present in court.

§ 406.* A person present in court, or before a judicial officer, may be required to testify, in the same manner as if he were in attendance upon a subpoena issued by such court or officer.

Duty of witness.

§ 407.* It shall be the duty of a witness, duly served with a subpoena, to attend at the time appointed, with any papers under his control required by the subpoena, to answer all pertinent and legal questions; and, unless sooner discharged, to remain till the testimony is closed.

Witness compelled to answer, when.

§ 408.* A witness shall answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need give an answer which will have a direct tendency to degrade his character, unless it be to the

Applicable to justices' courts, 620.

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