be put in, in all respects, in the manner prescribed in article two of this chapter. Qualifications of bail: See ante, § 1279. Legislation § 1317. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 606); in substance the same as Crim. Prac. Act, Stats. 1851, p. 273, § 546. § 1321. § 1322. § 1323. § 1324. CHAPTER II. Who may be Witnesses in Criminal Actions. Husband and wife as competent witness. When the defendant is not a competent witness. Witness not to be prosecuted upon testimony of himself. 1321. Who are competent witnesses. The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this code. Competency of witness: See Code Civ. Proc., §§ 1879 et seq. Defendant as witness: See ante, § 688; post, § 1323. Examination of witnesses conditionally: See post, § 1335. Examination of witnesses on commission: See post, §§ 1349-1362. Judge or juror as witness: Code Civ. Proc., § 1883. Rules of examination of witnesses: Code Civ. Proc., §§ 2042-2054. Witness, duties and rights of: Code Civ. Proc., §§ 2042-2054. § 1322. Husband and wife as competent witness. Neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties, except with the consent of both, or in case of criminal actions or proceedings for a crime committed by one against the person or property of the other, or in cases of criminal violence upon one by the other, or in cases of criminal actions or proceedings for bigamy, or adultery, or in cases of criminal actions or proceedings brought under the provisions of sections 270 and 270a of this code. [Amendment approved 1911; Stats. 1911, p. 270.] Husband or wife as witness: See Code Civ. Proc., § 1881, subd. 1. Legislation § 1322. 1. Enacted February 14, 1872; based on Stats. 1865-66, p. 46, § 1, which read: "Section 1. In all criminal actions where the husband is the party accused, the wife shall be a competent witness, and when the wife is the party accused, the husband shall be a competent witness; but neither husband nor wife shall be compelled or allowed to testify in such cases unless by consent of both of them; provided, that in all cases of personal violence upon either by the other, the injured party (husband or wife) shall be allowed to testify against the other." When enacted in 1872, § 1322 read: "1322. Except with the consent of both, or in cases 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." 2. Amended by Code Amdts. 1873-74, p. 451, changing "neither husband nor wife are competent witnesses for or against each other" to "neither husband nor wife is a competent witness for or against the other." 3. Amended by Stats. 1905, p. 140, to read: "Neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties, except with the consent of both, or in cases of criminal violence upon one by the other, or in cases of criminal actions or proceedings brought under the provisions of section two hundred and seventy of this code, or in cases of criminal actions or proceedings for bigamy. 4. Amended by Stats. 1907, p. 290. The change consisted in adding the words "and two hundred and seventy a" after "two hundred and seventy" and the words "or adultery" at the end of the section. 5. Amended by Stats. 1911, p. 270. § 1323. When the defendant is not a competent witness. A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any manner prejudice him nor be used against him on the trial or proceeding. [Amendment approved 1874; Code Amdts. 1873-74, p. 451.] Defendant cannot be compelled to be witness against himself: See ante, § 688. son on Legislation § 1323. 1. Enacted February 14, 1872; based '(1) Stats. 1865-66, p. 865, §§ 1, 2, which read: "Section 1. In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offenses, the perso charged shall, at his own request, but not otherwise, be deemed a competent witness; the credit to be given to his testimony being left solely to the jury, under the instructions of the court. Sec. 2. Nothing herein contained shall be construed as compelling any such person to testify." Also based on (2) Crimes and Punishment Act, as amended and supplemented by Stats. 1867-68, p. 49, § 1, which read: "Section 1. În a criminal action a felon shall be a competent witness for or against a felon for an offense committed when both are under judgment of imprisonment in the state prison." When enacted in 1872, § 1323 read: "1323. A defendant in a criminal action or proceeding to which he is a party, is not, without his consent, 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." 2. Amended by Code Amdts. 1873-74, p. 451. Pen. Code-39 § 1324. Witness not to be prosecuted upon testimony of himself. Person not exempt if testimony is voluntary. A person hereafter offending against any of the provisions of this code, or against any law of this state, is a competent witness against any other person so offending, and may be compelled to attend and testify and produce any books, papers, contracts, agreements or documents upon any trial, hearing, proceeding or lawful investigation or judicial proceeding, in the same manner as any other person. If such person demands that he be excused from testifying or from producing such books, papers, contracts, agreements or documents on the ground that his testimony or that the production of such books, papers, contracts, agreements or documents may incriminate himself, he shall not be excused, but in that case the testimony so given and the books, papers, contracts, agreements and documents so produced shall not be used in any criminal prosecution or proceeding against the person so testifying, except for perjury in giving such testimony, and he shall not be liable thereafter to prosecution by indictment, information, or presentment, or to prosecution nor punishment for the offense with reference to which his testimony was given, or for or on account of any transaction. matter or thing concerning which he may have testified or produced evidence, documentary or otherwise. No such person shall be exempt from indictment, presentment by information, prosecution or punishment for the offense with reference to which he may have testified as aforesaid, or for or on account of any transaction, matter or thing concerning which he may have testified as aforesaid, or produced evidence, documentary or otherwise, where such person so testifying or so producing evidence, documentary or otherwise, does so voluntarily, or when such person so testifying or so producing evidence fails to ask to be excused from testifying or so producing evidence, on the ground that his testimony or such evidence, documentary or otherwise, may incriminate himself, but in all such cases, the testimony or evidence, documentary or otherwise, so given may be used in any criminal prosecution or proceeding against the person so testifying or producing such evidence, documentary or otherwise. Any person shall be deemed to have asked to be excused from testifying or producing evidence, documentary or otherwise, under this section, unless before any testimony is given or evidence, documentary or otherwise, is produced by such a witness, the judge, foreman or other person presiding at such trial, hearing, proceeding or investigation, shall distinctly read this section of this code to such witness, and the form of the objection by the witness shall be immaterial, if he in substance makes objection that his testimony or the production of such evidence, documentary or otherwise, may incriminate himself, and he shall not be obliged to object to each question, but one objection shall be sufficient to protect such, witness, from prosecution for any offense concerning which he may testify, or for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, upon such trial, hearing, proceeding or investigation. Legislation § 1324. Added by Stats. 1911, p. 485. § 1326. § 1327. CHAPTER III. Compelling the Attendance of Witnesses. Subpoena defined, and who may issue. § 1328. Subpoena, by whom and how served. $1329. § 1330. § 1331. Fees of witnesses, when from without county. Witness residing or served with subpoena out of the county, how compelled to attend. Disobedience to subpoena, etc. §1332. Failure to appear, undertaking forfeited. § 1333. Manner of producing prisoner as witness. If prison is out of county in which application is made. § 1326. Subpoena defined, and who may issue. The process by which the attendance of a witness before a court or magistrate is required is a subpoena; 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 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. [Amendment approved 1880; Code Amdts. 1880, p. 27.] Subpoena, defined: Code Civ. Proc., § 1985. Legislation § 1326. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 607-611); based on Crim. Prac. Act, Stats. 1851, p. 273, §§ 547-551, which read: "§ 547. The process by which the attendance of a witness before a court or magistrate is required, is a subpoena. § 548. A magistrate before whom an information is laid, may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the people or of the defendant. § 549. The district attorney may issue subpoenas, subscribed by him, for witnesses within the state, in support of the prosecution, or for such other witnesses as the grand jury, upon any investigation pending before them, may direct. § 550. The district attorney may in like manner issue subpoenas subscribed by him, for witnesses within the state, in support of an indictment to appear before the court at which it is to be tried. § 551. The clerk of the court at which an indictment is to be tried shall at all times upon the application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him as clerk, for witnesses within the state, as may be required by the defendant." 2. Amended by Code Amdts. 1880, p. 27 (1) in subd. 1, changing "an information" to "a complaint"; (2) in subds. 3 and 4, adding "or information" after "indictment." § 1327. Form of subpoena. A subpoena authorized by the last section must be substantially 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 [nineteen] —. 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). Legislation § 1327. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 612); in substance the same as Crim. Prac. Act, Stats. 1851, p. 273, §§ 552, 553. § 1328. Subpoena, by whom and how served. 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. Subpoena, how served in civil cases: Code Civ. Proc., § 1987. |