1344. Deposition to be transmitted to clerk.

SEC. 1344. 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.

1345. When may be read in evidence.

SEC. 1345. 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.

Depositions as evidence. The deposition of a witness given before a coroner's jury, certified and returned to court as required by the statute, is admissible in evidence for the purpose of contradicting the statement of the witness made under oath, on the trial of the person accused of having murdered the deceased: People v. Devine, 44 Cal. 452. Depositions, to be admissible against a party, must show an actual compliance with all the provisions of the statute: Williams v. Chadbourne, 6 Id. 559. Taking the testimony of a witness on behalf of the people in a criminal case by deposition is an exception to the rule which entitles the defendant in a criminal action to be confronted with the witnesses against him in the presence of the court, and every substantial requirement of the law which authorizes it must be observed: People v. Mitchell, 64 Id. 85, 87. When taken by the committing magistrate under section 869, ante, they are not admissible against the defendant under section 686, ante, unless taken in the manner and form, and certified, as required by the former section, and the certificate must show an actual compliance with all the requirements of the statute. A deposition not certified by the magistrate otherwise than by a jurat in the ordinary form is not admissible: People v. Morine, 54 Id. 575. The reporter's notes of testimony given by a witness upon the trial of a former indictment against the defendant for the same offense, which indictment has been subsequently set aside, the

witness being out of the state, are not admissible against the defendant on a second trial for the same offense. A defendant in a criminal case is entitled to be confronted with the witnesses against him, in the presence of the court in which the action is being tried, except in the instances specified in section 686: People v. Chung Ah Chue, 57 Id. 567. A defendant is not bound to take the deposition of a witness within reach of the process of the court, but if the witness is too unwell to attend the trial, the court should grant a reasonable continuance: People v. Dodge, 28 Id. 445. Prior to the enactment of this code, the deposition of a witness out of the state could not be taken, but was prohibited: People v. Francis, 38 Id. 183. The deposition required to be taken by section 869, ante, does not constitute the best or only evidence of what the witness swore to. Parol evidence is admissible to show that fact: People v. Curtis, 50 Id. 95.

A deposition taken under sections 882 and 869 must conform to the requirements thereof. Where the fact that the witness was unable to procure sureties for his appearance at the trial was not shown by the oath of any one, and the deposition itself does not show that it was read over to the witness and signed by him after acknowledging it to be correct, and was certified to by the officer taking it, it will be inadmissible against the defendant: People v. Mitchell, 64 Cal. 85.

1346. Deposition of witnesses who are prisoners in other counties.

SEC. 1346. When a material witness for a defendant, under a criminal charge, is a prisoner in the state prison, or in the county jail of a county other than that in which the defendant is to be tried, his deposition may be taken, on behalf of the defendant, in the manner provided for in the case of a witness who is sick, and the provisions of the Penal Code, commencing with section thirteen hundred and thirty-five and ending with section thirteen hundred and forty-five, shall, so far as applicable, govern in the application for and in the taking and use of such deposition. Such deposition may be taken before any magistrate or notary public of the county in which the jail or prison is situated; or in case the witness is confined in the state prison, and the defendant is unable to pay for taking the deposition, before the warden or clerk of the board of directors of the state prison, whose duty it shall be to act without compensation. Every officer before whom testimony shall be taken by virtue hereof shall have authority to administer, and shall administer, an oath to the witness

that his testimony shall be the truth, the whole truth, and nothing but the truth. [Amendment, approved April 9, 1880; Amendments 1880, 27 (Ban. ea. 174); took effect immediately.]

CHAPTER V.

EXAMINATION OF WITNESSES ON COMMISSION.

1349. Witness residing out of state, when to be examined.

SEC. 1349. When an issue of fact is joined upon an indictment or information, the defendant may have any material witness, residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise. [Amendment, approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 175); took effect immediately.]

1350. When defendant may apply for order to examine, etc.

SEC. 1350.

When a material witness for the defendant resides out of the state, the defendant may apply for an order that the witness be examined on a commission.

1351. Commission defined.

SEO. 1351. 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.

1352. Application made on affidavit.

SEC. 1352. The application must be made upon affidavit, stating:

1. The nature of the offense charged;

2. The state of the proceedings in the action, and that an issue of fact has been joined therein;

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.

1353. Application, to whom made.

SEC. 1353. The application may be made to the court, or a judge thereof, and must be upon three days' notice to the district attorney. [Amendment, approved March 12, 1880; Amendments 1880, 6 (Ban. ed. 26); took effect immediately.] 1354. Order of commission, when granted, and stay of proceedings.

SEC. 1354. If the court 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 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. [Amendment, approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 175); took effect immediately.] Continuance. The court will not grant a continuance upon the affidavit of defendant stating that he believes he can procure the at

tendance of witnesses residing out of the state, or their depositions, such affidavit being in the alternative: People v. Francis, 38 Cal. 183.

1355. Interrogations, how settled and allowed.

SEC. 1355. When the commission is ordered, the defendant must serve upon the district 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 district 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 questions pertinent to the issue. When the interrogatories and cross-interrogatories are 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.

1356. Direction as to the return of the commission.

SEO. 1356. 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. 1357. Commission, how executed.

SEC. 1357. 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 near as possible in the language in which he gives 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 decline answering 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, they, or copies of them, 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 be a direction on the commission to return it by mail, the commissioner must immediately deposit it in the nearest post-office. If any other direction be made by the written consent of the parties, or by the court or judge, on the commission as to its return, the commissioner must comply with the direction.

A copy of this section must be annexed to the commission. [Amendment, approved March 24, 1874; Amendments 1873-4, 451; took effect July 1, 1874.] 1358. Commission, how returned when delivered to an agent for that purpose.

SEC. 1358. If the commission and return be 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 or altered since he received it. [Amendment, approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 175); took effect immediately.]

1

1359. When agent unable to deliver.

SEC. 1359. 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 or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hands of the commissioner.

1360. When and how filed.

SEC. 1360. 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 indictment is pending. If the commission and return is transmitted by mail, the clerk to whom it is addressed must receive it from the post-office, and open and file it in his office, where it must remain, unless otherwise directed by the court or judge.

1361. Commission and return to be open for inspection.

SEC. 1361. 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.

1362. Depositions to be read in evidence.

SEC. 1362. 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.

Depositions in criminal cases: See People v. Garrett, 6 Cal. 203; People v. Francis, 38 Îd. 183; People v. Curtis, 50 Id. 95; Weeks on Depositions, secs. 540-569; see sec. 1345, note. "The two preceding chapters embody the provisions of sections 562-582, inclusive, of the criminal-practice act, Stats. 1851, 212, extended to provide for taking depositions of persons out of the state. In People v. Francis, 38 Cal. 183, the supreme court held that under

the sections cited the defendant could not take the deposition of any witness who resided out of the state. The same reason for a statutory enactment to meet such a case exists as for the provisions relating to taking testimony conditionally. As the law now stands, a defendant is unable to avail himself of the testimony of a witness residing in another state, even though that testimony is absolutely necessary to his exculpation:" Commissioners' note.

CHAPTER VI.

INQUIRY INTO THE INSANITY OF THE DEFENDANT BEFORE TRIAL OR AFTER CONVICTION.

1367. Insane person cannot be tried, sentenced, or punished for public offense. SEC. 1367. A person cannot be tried, adjudged to punishment, or punished for a public offense while he is insane.

act charged was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the particular act with which he stands charged, or, if he knew its nature and quality, that he did not

know it was wrong: People v. Coffman, 24 Cal. 230; People v. McDonnell, 47 Id. 134. Acquittal on the ground of insanity: Sec. 1167, ante.

1368. When doubts arise as to sanity of defendant, how determined.

SEC. 1368. When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arise as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity. [Amendment, approved April 9, 1880; Amendments 1880, 28 (Ban. ed. 175); took effect immediately.]

Insanity as a defense generally: Sec. 26. Order of trial: Sec. 1369. Present insanity.-No plea of present insanity is required. If at any time during the proceedings in a criminal trial a doubt arises as to the sanity of the defendant, it is the duty of the court, of its own motion, to suspend further proceedings in the case until the question of sanity has been determined: People v. Ah Ying, 42 Cal. 19.

Refusing to submit question of sanity to a jury. It is not error for the court, when it entertains no doubt as to the sanity of the prisoner, to deny a motion made when the prisoner is brought up for judgment, to submit the issue

of insanity to a jury: People v. Pico, 62 Cal. 50.

Plea of insanity not to be encouraged.— In People v. De Cleer, 60 Cal. 382, the plea of insanity was "a plea set up in the absence of all matter tending to show an excuse or justification for the attempted murder, and such pleas are not to be encouraged in courts of justice." And as to proper instruction that jury examine the plea with care, see People v. Pico, 62 Id. 50.

Irresistible influence defined; does not constitute insanity: People v. Hoin, 62 Cal. 121. Acquittal on the ground of insanity: See sec. 1167.

1369. Order of trial of question of insanity.

SEC. 1369. The trial of the question of insanity must proceed in the following order:

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

2. The counsel for the people may then open their case and offer 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 evidence upon their original cause;

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 people must commence, and the defendant or his counsel may conclude the argument to the jury;

5. If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately; in other cases 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 giving their verdict.

Order of trial.-Insanity, when relied upon as a defense in a criminal case, is to be established by the prisoner by preponderating proof. It is an issue upon which he holds the affirmative, and before it can be availed of he is bound to establish not only the fact of insanity, but insanity of the character; i. e., arising from such a cause as in point of law amounts to a

defense: People v. Bell, 49 Cal. 488. It should be clearly established by satisfactory proof: People v. O'Donnell, 47 Id. 134; People v. Coffman, 24 Id. 230; People v. Myers, 20 Id. 518. The above section, by requiring counsel for defendant to open a case, and offer evidence in support of the allegation of insanity, is consistent with the decisions cited.