afford reasonable grounds for apprehending that he will not be able to attend the trial. [C. L. § 5207.

Cal. Pen. C. 1337.

5030. Application made at any time. Notice. The application may be made to the court during the term thereof, or to the judge in vacation, and must be upon three days' notice to the county attorney. [C. L. § 5208.

Cal. Pen. C. 1338*.

5031. When order granted. Service on county attorney. If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and that a copy of the order be served on the county attorney, within a specified time before that fixed for the examination. [C. L. § 5209.

Cal. Pen. C. 1339.

5032. Examination of witness before magistrate. The order must direct that the examination be taken before a magistrate named therein, and on proof being furnished to such magistrate of service upon the county attorney of a copy of the order, if no counsel appear on the part of the state, the examination must proceed. [C. L. § 5210.

Cal. Pen. C. 1340.

5033. Id. When may be stayed. If the county attorney, or other counsel, appear on behalf of the state, and it is shown to the satisfaction of the magistrate, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed. [C. L. § 5211.

Cal. Pen. C. 1341.

5034. Subpoena for witness. The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken. [C. L. § 5212.

Cal. Pen. C. 1342.

The

5035. Testimony reduced to writing and authenticated. testimony given by the witness must be reduced to writing, and authenticated in the same manner as a deposition in a civil action. [C. L. § 5213*.

Cal. Pen. C. 1343*.

5036. Id. Sealed and sent to district court. The deposition taken must, by the magistrate, be sealed up and transmitted to the clerk of the court in which the action is pending, or may come for trial. [C. L. § 5214.

Cal. Pen. C. 1344.

5037. Id. Use on trial. Objections. The deposition, or a certified copy thereof, may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness, or infirmity, or of his continued absence from the state. Upon reading the deposition in evidence, the same objections may be taken to a question or answer contained therein as if the witness had been examined orally in court. [C. L. § 5215.

Cal. Pen. C. 1345.

CHAPTER 49.

EXAMINATION OF WITNESSES ON COMMISSION.

5038. Non-resident witness examined for defense. Procedure. When an issue of fact is joined upon an information or indictment, or before,

if the court so order, the defendant may have any material witness, residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise. [C. L. § 5216.

Cal. Pen. C. 1349*.

Examination of witness residing in the state, ?? 5027-5037.

5039. Id. Application for order. When a material witness for the defendant shall reside out of the state, the defendant may apply for an order that the witness be examined on a commission. [C. L. § 5217.

Cal. Pen. C. 1350.

5040. Commission defined. A commission is a process issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath on interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission. [C. L. § 5218.

Cal. Pen. C. 1351.

5041. Application must be made on affidavit. Contents. 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 of the witness, and that his testimony is material to the defense of the action.

4.

That the witness resides out of the state. [C. L. § 5219.

Cal. Pen. C. 1352*.

5042. Application may be made at any time. Notice. The application may be made to the court during the term, or to the judge in vacation, and must be upon three days' notice to the county attorney. [C. L. § 5220.

Cal. Pen. C. 1353*.

5043. When order for commission granted. Stay of trial. If the court or judge to whom the application is made is satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony; and the court or judge may insert in the order a direction that the trial be stayed for a specified time, reasonably sufficient for the execution and return of the commission. [C. L. § 5221.

Cal. Pen. C. 1354.

5044. Interrogatories and cross-interrogatories, settlement of When the commission is ordered, the defendant must serve upon the county attorney without delay, a copy of the interrogatories to be annexed thereto, with two days' notice of the time at which they will be presented to the court or judge. The county attorney may in like manner serve upon the defendant or his counsel cross-interrogatories, to be annexed to the commission, with the like notice. In the interrogatories either party may insert any question pertinent to the issue. When the interrogatories and cross-interrogatories shall be presented to the court or judge according to the notice given, the court or judge must modify the questions so as to conform them to the rules of evidence, and must indorse upon them his allowance and annex them to the commission. [C. L. § 5222.

Cal. Pen. C. 1355.

5045. Instructions for return of commission. Unless the parties otherwise consent, by an indorsement upon the commission, the court or judge must indorse thereon a direction as to the manner in which it must be returned. and may in his discretion, direct that it be returned by mail or otherwise, addressed to the clerk of the court in which the action is pending, designating his name and the place where his office is kept. [C. L. § 5223.

Cal. Pen. C. ? 1356.

5046. Examination of witness. Form of deposition. Return. The commissioner, unless otherwise specially directed, may execute the commission as follows:

1. He must publicly administer an oath to the witness that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth.

2. He must cause the examination of the witness to be reduced to writing, and subscribed by him.

3. He must write the answers of the witness as nearly as possible in the language in which he shall give them, and read to him each answer as it is taken down, and correct or add to it until it conforms to what he declares is the truth. 4. If the witness declines to answer a question, that fact, with the reason assigned by him for declining, must be stated.

5. If any papers or documents are produced before him and proved by the witness, the same, or copies thereof, must be annexed to the deposition subscribed by the witness and certified by the commissioner.

6. The commissioner must subscribe his name to each sheet of the deposition and annex the deposition with the papers and documents proved by the witness or copies thereof, to the commission and must close it up under seal and address it as directed by the indorsement thereon.

7. If there is a direction on the commission to return it by mail, the commissioner must immediately deposit it in the nearest postoffice. If any other direction is made by the written consent of the parties, or by the court or judge, on the commission as to its return, he must comply with the direction. of this section must be annexed to the commission.

Cal. Pen. C. 1357.

[C. L. § 5224*.

A copy

5047. Delivery of commission and return by agent. Affidavit. If the commission and return is delivered by the commissioner to an agent, he must deliver the same to the clerk to whom it is directed, or to the judge of the court in which the action is pending, by whom it may be received and opened, upon the agent making affidavit that he received it from the hands of the commissioner, and that it has not been opened nor altered since he received it. [C. L. $5225.

Cal. Pen. C. 1358.

5048. Id. Procedure if agent dead, etc. If the agent is dead, or from sickness or other casualty unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent; that the agent is dead, or from sickness or other casualty unable to deliver it; that it has not been opened nor altered since the person making the affidavit received it; and that he believes it has not been opened nor altered since it came from the hands of the commissioner. [C. L. § 5226.

Cal. Pen. C. 1359.

5049. Filing and opening of commission and return. The clerk or judge receiving and opening the commission and return must immediately file it with the affidavit mentioned in the last two sections in the office of the clerk of the court in which the action is pending. If the commission with the return is transmitted by mail, the clerk to whom it is addressed must receive it from the postoffice, and open and file it in his office, where it must remain, unless otherwise directed by the court or judge. [C. L. § 5227.

Cal. Pen. C. 1360.

5050. Commission and return open to inspection. The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same or of any part thereof, on payment of his fees. [C. L. § 5228.

Cal. Pen. C. 1361.

5051. Depositions may be read in evidence. Objections. The depositions taken under the commission may be read in evidence by either party on the trial, upon it being shown that the witness is unable to attend from any cause whatever; and the same objections may be taken to a question in the interrogatories or to an answer in the deposition, as if the witness had been examined orally in court. [C. L. § 5229.

Cal. Pen. C. ?1362.

CHAPTER 50.

INQUIRY INTO SANITY OF DEFENDANT.

5052. No person to be tried or punished while insane. No person while insane shall be tried, adjudged to punishment, or punished for a public offense. [C. L. § 5230.

Cal. Pen. C. 1367.

Inquiry into the sanity of person sentenced to death, 4931-4935. Burden of proof in insanity cases, 5012.

"The capacity of the defendant to distinguish

between right and wrong at the time and with respect to the act which is the subject of inquiry,” held to correctly state the law. People v. Calton, 5 U. 451; 16 P. 902. See Calton v. Utah, 130 U. S. 83.

5053. Inquiry into sanity of accused or convicted person. Procedure. Whenever a person charged with crime shall have escaped information or indictment therefor, or shall have been acquitted thereof on trial, upon the ground of insanity; or whenever a person during trial, or when brought up for sentence, or while confined as a criminal in the state prison or a county jail, shall become insane, complaint under oath must be made setting forth the facts in the case, and the district court of the county must proceed as hereinafter in this chapter set out. [C. L. § 5231*; '92, p. 5*; '96, p. 401*.

Cal. Pen. C. 1368*.
District judges to commit insane person to asylum,

22171-2179. Insanity as a cause why judgment should not be pronounced, 4914. 5054. Id. Trial by jury. Suspension of criminal proceedings. The question of such person's sanity may be submitted to a jury that must be drawn and selected as in other cases. All criminal proceedings against him must be suspended until such question is determined. The trial jury, if one has been impaneled, may in the meanwhile be discharged or retained, in the discretion of the court. [C. L. § 5231**.

Cal. Pen. C. 2 1368*.

5055. Order of trial for insanity. The trial of the question of insanity must proceed in the following order:

1. The counsel for the defendant must open the case and produce evidence in support of the allegation of insanity.

2. The counsel for the state may then open its case and produce evidence in support thereof.

3. The parties may then respectively offer rebutting testimony only, unless the court, for good reason in furtherance of justice, permit them to offer testimony upon the original case.

4. When the evidence is concluded, unless the case is submitted to the jury on either or both sides without argument, the counsel for the state must commence, and the defendant or his counsel may conclude, the argument to the jury.

5. If there are pending proceedings for an offense punishable with death, two counsel on each side may argue the case to the jury, in which event they must do so alternately. In other instances, the argument may be restricted to one counsel on each side.

6.

The court must then charge the jury, stating to them all matters of law necessary for their information in rendering a verdict. [C. L. § 5232.

Cal. Pen. C. 1369*.

5056. Procedure on finding of sanity. If the jury find the defendant sane, the trial must proceed, or judgment be pronounced, or he be returned to prison, or be discharged, as the case may be. [C. L. § 5233*.

Cal. Pen. C. 1370*.

Similar provision, 24914.

5057. Procedure on finding of insanity. If the jury find the defendant insane, the judge shall order the sheriff to forthwith convey him, together with a copy of the complaint, the commitment, and the physicians' certificate if any, to the state insane asylum, provided the court deems his freedom a menace to public quietude. Proceedings against the defendant must be suspended until he becomes sane. [C. L. § 5233*. Cal. Pen. C. 1370*.

5058. Commitment to asylum exonerates bail. The commitment of the defendant to the asylum shall exonerate his bail, or entitle a person authorized to receive the property of such defendant to a return of any money he may have deposited instead of bail. [C. L. § 5234.

Cal. Pen. C. 1371.

5059. Id. Detention until sanity restored. Subsequent proceedings. A person received into the asylum in pursuance of the foregoing provisions, must be detained there until he becomes sane. If then the sentence of such person shall have expired, he must be restored to liberty. But if he is not legally discharged, the superintendent must give notice of his recovery to the sheriff of the county from which he shall have been sent. The sheriff shall thereupon, without delay, bring the defendant from the asylum, and either place him in proper custody until he is brought to trial or judgment, or return him to prison to serve out the remainder of his term. The defendant shall be entitled to have the time of his confinement in the asylum deducted from his term. [C. L. §§ 5235*, 5262*.

Cal. Pen. C. 1372*.

5060. Expenses of examination of insane, how paid. The expenses of the examination and of the sending of such persons, save convicts in the state prison, to and from the asylum, shall be in the first instance chargeable to the county from which they shall have been sent. But the county may recover them from the estates of any such persons, or from a relative legally bound to care for them, or from the county of which such persons may be resident. Expenses of the examination and of the sending of an insane convict to and from the asylum must be borne by the state, if he is impecunious. [C. L. §§ 5236*, 5263*. Support by relatives, 2499.

Cal. Pen. C. 1373*.

5061. Clerk to certify costs to state or to county. The clerk of the district court before which an examination shall have been conducted shall certify the costs to the state auditor, who is hereby authorized to issue his warrants therefor, or to the board of county commissioners, as the case may be. § 5263*.

[C. L.

CHAPTER 51.

COMPROMISING PUBLIC OFFENSES.

5062. What misdemeanors may be compromised. When a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the offense has a remedy by a civil action, the offense may be compromised as provided in the next section, except when it is committed: