Defendant as witness.-A defendant has a right to testify on his own behalf-42 Cal. 168. The defendant need not testify in his own behalf, and no inference of guilt can be drawn from his failure to do so-36 Cal. 522; and counsel cannot so argue against defendant's ob jections-53 id. 66; see 36 id. 522. The fact that defendant offers himself as a witness does not change or modify the rules of practice with reference to the proper limits of cross-examination, and does Lot make him a witness for the State against himself-41 Cal. 431. A que tion put to him on cross-examination, as to whether he had not been previously arrested for another larceny, is not objectionable-45 C 148. If he testifies on his own behalf, the court need not, of its own motion, charge as to his credibility-44 Cal. 540. The same rule apples as to other witnesses-44 Cal. 540. See Const. Prov. ante, p. 18.

Examination of defendant as witness.-A defendant may be a witness in his own behalf-31 Cal. 576; see ante, page 18. It is not a valid objection to a witness that his name is not entered on the indic ment-19 Cal. 426; 22 id. 348; 29 id. 562; 31 id. 576; but it may be a ground for a continuancé-6 id. 96. He is entitled to the same rights and s subject to the same rules as any other witness-49 Ind. 124; 65 Bar & The degree of credit to which he was entitled is for the jury anizo the court-63 Barb. 630. The failure of a defendant to become a ness on his own behalf, is not to be considered by the jury as a dr cumstance tending to establish guilt, and counsel must not so argue against objections of defendant's counsel-53 Cal. 67; 36 id. 522.

In the United States courts the prisoner cannot testify in his ow behalf-1 Dill. 422. A party as witness drops the character of a party and assumes that of a witness and is entitled to the privileges of s witness-24 N. Y. 298. Defendant as a witness on his own behalf may be cross-questioned by asking if he omitted anything pertinent to the case, and his attention may be directed to the precise point by asking him if some specified thing did not occur-46 Cal. 124; 65 Barb Where a defendant offers himself for examination in his own beha the prosecution cannot make him their witness by cross-examinativa -41 Cal. 429; 9 Nev. 179. The credit to be given to the defendant as a witness, is to be left to the jury-44 Cal. 540. See ante, § 1102, note.

1

CHAPTER III.

COMPELLING THE ATTENDANCE OF WITNESSES.

§ 1326. Subpoena defined, and who may issue.

§ 1327. Form of subpoena.

§ 1328. Subpoena, by whom and how served.

§ 1329. Expenses of witness from without the county, or poor.

§ 1330. Attendance of witness residing or served out of the county § 1331. Disobedience to subpœna, etc.

§ 1332. Failure to appear, undertaking forfeited.

§ 1333. Temporary removal of imprisoned witnesses.

1326. 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 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.

[In effect April 9th, 1880.]

Witness, procuring attendance.-The issuing of an attachment against a witness on behalf of the prisoner, after arrangements for summing up the case, is in the discretion of the court-19 N. Y. 549. It is a crime at common law to induce a witness to absent himself, and an attempt to do so, though not accomplished, will subject the offender to indictment-64 Me. 386. On an indictment for getting a witness out of the way, it need not be proved that the testimony of the witness was material-3 Har. (Del.) 562.

1327. A subpœna 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

day of

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 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 subpœna: "And you are re quired, also, to bring with you the following" (descr ing intelligibly the books, papers, or documents required> 1328. A subpoena may be served by any person, but a peace officer must serve in his county any subpons 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.

1329. 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 ap pears that he has come from a place outside of the county or that he is poor and unable to pay the expenses of suc attendance, the court, at its discretion, if the attendance of the witness be upon a trial, by an order upon its m utes, or, in any other case, the judge, at his discretion, 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. [Approved March

1330. 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. [In effect April 12th, 1880.]

1331. 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. A witness disobeying a subpœna issued on the part of the defendant, unless he show good cause for his non-attendance, is liable to the defendant in the sum of one hundred dollars, which may be recovered in a civil action.

Contempt.-The refusal of a witness to testify, or to answer a proper question, is a contempt-1 Ind. 161.

1332. 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.

1333. 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

PEN. CODE.-46.

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. [In effect April 1st, 1878.]