witness, may be punished by the court or magistrate as a contempt. A witness disobeying a subpoena 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. En. February 14, 1872. Crim. Prac. Act, sec. 559. 290. En. 1851, 212. Crim. Prac. Act, sec. 561. 290. En. 1851, 212. En. April 20, 1850. Rep. 1851, En. April 20, 1850. Rep. 1851, Contempts: Code Civ. Proc., secs. 1209-1222. § 1332. Failure to appear, undertaking forfeited. 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. En. February 14, 1872. Crim. Prac. Act, sec. 560. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1333. Temporary removal of imprisoned witness. 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 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. En. Stats. 1877-8, 123. Cal. Rep. Cit. 82, 457; 82, 461; 82, 463; 82, 468. Pen. Code-30 CHAPTER IV. EXAMINATION OF WITNESSES CONDITIONALLY. 1335. Examination of witnesses conditionally. 1336. In what cases order may be applied for. 1337. Application, how made. 1338. Application, to whom made. 1339. Order, what to contain. 1340. Defendant has right to be present at examination. 1341. Examination not to proceed, when. 1342. Attendance of witness, how enforced. 1343. Testimony, how taken and authenticated. 1344. Deposition to be transmitted to clerk. 1345. When may be read in evidence. Objections, etc. 1346. Deposition of witness imprisoned in another county. When § 1335. Examination of witnesses conditionally. a defendant has been held to answer a charge for a public offense, he, in all cases, and the people in cases other than of homicide, may, either before or after an indictment or information, have witnesses examined conditionally in his or their behalf, as prescribed in this chapter. En. February 14, 1872. Am'd. 1880, 27; 1905, 702. 1335, 1336, 1337, 1338, 1339, 1340, 1341. By the amendment to the above sections, the provisions of the statute respecting the conditional examination of witnesses have been extended so far as may be constitutionally done, to the end that the prosecution, except in cases of homicide, may have the same privilege as the accused of taking conditionally the testimony of witnesses who are about to leave the state, or who are so sick and infirm as to afford reasonable grounds for apprehending that they will be unable to attend the trial. The proposed change is within the contemplation of that part of section 13 of Article I of the Constitution, which provides that "the legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than cases of homicide, when there is reason to believe that the witness, from inabilty or other cause, will not attend the trial."-Code Commissioner's Note. Crim. Prac. Act, sec. 562. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 38, 186; 38, 187. § 1336. In what cases an order may be applied for. When a material witness for the defendant, or for the peopie, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend the trial, the defendant or the people may apply for an order that the witness be examined conditionally. En. February 14, 1872. Am'd. 1905, 702. See note to § 1335, ante. Cal. Rep. Cit. 66, 396; 82, 463. Crim. Prac. Act, sec. 563. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 186. § 1337. Application, how made. 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 and residence of the witness, and that his testimony is material to the defense or the prosecution of the action; 4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial. En. February 14, 1872. Am'd. 1905, 703. See note to § 1335, ante. Cal. Rep. Cit. 82, 463. Crim. Prac. Act, sec. 566. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. Cal. Rep. Cit. 38, 186. § 1338. Application, to whom made. The application may be made to the court, or a judge thereof, and must be upon three days' notice to the opposite party. En. February 14, 1872. Am'd. 1880, 5; 1905, 703. See note to § 1335, ante. Crim. Prac. Act, sec. 567. En. April 20, 1850. Rep. 1851, En. 1851, 212. 290. § 1339. Order, what to contain. 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 before a magistrate designated therein. En. February 14, 1872. Am'd. 1905, 703. See note to § 1335, ante. Crim. Prac. Act, sec. 568. 290. En. 1851, 212. En. April 20, 1850. Rep. 1851, Crim. Prac. Act, sec. 569. En. April 20, 1850. Rep. 1851, 290. En. 1851, 212. § 1340. Defendant has right to be present at examination. The defendant has the right to be present in person and with counsel at such examination, and if the defendant is in custody, the officer in whose custody he is, must be informed of the time and place of such examination, and must take the defendant thereto, and keep him in the presence and hearing of the witness during the examination. En. February 14, 1872. Am'd. 1905, 703. See note to § 1335, ante. § 1341. Examination not to proceed, when. If, at the time and place so designated, it is shown to the satisfaction of the magistrate that the witness 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. En. February 14, 1872. Am'd. 1905, 703. See note to § 1335, ante. § 1342. Attendance of witness, how enforced. The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken. En. February 14, 1872. The § 1343. Testimony, how taken and authenticated. testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information. En. February 14, 1872. § 1344. Deposition to be transmitted to clerk. 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. En. February 14, 1872. § 1345. When may be read in evidence. Objections, etc. 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 has been examined orally in court. En. February 14, 1872. Cal. Rep. Cit. 75, 303; 108, 445. Crim. Prac. Act, sec. 582. En.. April 20, 1850. § 1346. Deposition of witness imprisoned in another county. 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. En. Stats. 1877-8, 123. Am'd. 1880, 28. Cal. Rep. Cit. 82, 457; 82, 463. 1349. § 1350. 1351. CHAPTER V. EXAMINATION OF WITNESSES ON COMMISSION. 1352. Application made on affidavit. § 1353. Application, to whom made. 1354. Order for commission, when granted, stay of proceedings, 1355. Interrogations, how settled and allowed. 1356. Direction as to the return of the commission. 1357. 1358. Commission, how executed. Returned commission, delivered to an agent. 1359. Same. 1360. When and how filed. 1361. Commission and return, open for inspection. Copies, etc. 1362. Depositions to be read in evidence. Objections. § 1349. Examination of witness residing out of the state. When an issue of fact is joined upon an indictment or information, the defendant may have any material witness, |