¶1It is a well-settled general rule that a witness, who has been subpoenaed, and who has not withdrawn from the court-room in compliance with an order sequestering the witnesses, is competent and compellable to testify, under the Civil Code (1910), § 5858. Despite the fact that the witness himself, or others, may be subject to punishment for contempt of court, the testimony will not be excluded. This rule is not altered by the fact that a witness who heard the testimony of other witnesses in the pending trial had not been subpoenaed; though if it appears that the availability and importance of the testimony was known, or other circumstances are made to appear to the court which indicate that the rights of the opposite party have been intentionally prejudiced, the court is authorized to impose similar penalties to those just referred to, for the failure to call the attention of the court, as soon as the presence of the proposed witness has been ascertained, to the fact that the person whom it was intended to introduce is in the court-room. Applying these principles to the facts appearing from the record of this case, the refusal of the court to permit the person offered as a witness by the defendant to testify was such error as requires the grant of a new trial.
¶2As the case is being sent back for another trial, no opinion will be expressed as to the sufficiency of the evidence to support the verdict. Judgment reversed.