<p>Criminal Law—Testimony of Convict — Construction of Penal Code — Habeas Corpus ad Testificandum. — Although under section 1567 o£ the Penal Code a defendant in a criminal case is allowed the right to have the process of the court to compel the attendance of a convicted prisoner as a witness in his behalf, whether such prisoner is in the state prison or the county jail, yet the power conferred by that section should be exercised under the same circumstances and with the same restrictions under which the common-law courts were accustomed to issue the writ of habeas corpus ad testificandum.</p> <p>Id.—Showing Required — Discretion.—The order for process to compel the attendance of a convicted prisoner as a witness should not be made, except upon a very strict showing of the materiality of the testimony, and the necessity of securing the attendance of the prisoner as a witness, and upon previous notice to the state of the application; but when such notice has been given, and a case of materiality of the evidence and apparent necessity is made out, and the'good faith of the applicant also appears, the court ought, in the exercise of its discretion, to make the order for the attendance of the prisoner as a witness.</p> <p>Id.—Receiving Stolen Goods — Evidence—Subsequent Distinct Offenses. — Where an information for receiving stolen goods alleged that the property was received by the defendant on or about a certain date, and it is proved to have been stolen a few days after that date, the prosecution cannot, for the purpose of showing that the property was received by the defendant with a guilty knowledge that it had been stolen, introduce evidence that a large number of other articles, found in the house occupied by the defendant and the thief some three months thereafter, had been stolen by means of burglaries committed subsequent to the date complained of, and relied upon in evidence.</p> <p>Id.—Bormer Acquittal—Goods Received at Same Time.—If goods stolen from different persons are received at the same time, the offense is single, and a plea of former acquittal of a charge of receiving goods stolen from one of such persons is a good plea to a charge of receiving any other stolen goods at the same time.</p> <p>Id.—Evidence—Marriage of Defendant with Thief—Former Marriage. —Where the defendant claimed to be the wife of the thief, and therefore not guilty of receiving the stolen goods from him, her admission of a former marriage, and refusal to disclose the name of her former husband, and her failure to show a dissolution of the former marr.age by death, divorce, or disappearance, are sufficient to discredit her naked statement that she was a single woman at the date she claimed to have been married to the thief, and are sufficient to sustain an implied finding of the jury against a lawful marriage between her and the thief.</p> <p>Id.—Trial—Prejudicial Remarks of Court—Self-contradiction of Defendant — Province of Jury. —It is prejudicial error for the court, in the presence and hearing of the jury, when ruling upon an objection to the admission in evidence of a letter written by the thief to the defendant, in commenting upon the testimony of the defendant in relation to it, to remark that “she had contradicted herself several times in the record,” and to reiterate such remark, after an exception by the defendant, with the additional remark that “that is the chief reason why I admit those letters in evidence.” Such remarks, being unretracted and unexplained, amounted to a statement of the opinion of the court that the witness had sworn falsely, and was, in effect, charging the jury as to matters of fact.</p> <p>Id.—Consistency of Prosecution.—The prosecution cannot go upon one theory to make out its case, and upon a wholly inconsistent theory to meet a special defense.</p>
6 federal appellate · 2 district · 35 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1I concur in the judgment of reversal; but I fear that some language in the leading opinion will be construed as holding that a defendant has a constitutional right to have a convict brought out of the state prison, whenever the former is ready to swear that the latter is a material witness. It is admitted, however, that whether or not a convict will be ordered out of prison into court (and his term of imprisonment thus interfered with) depends upon the discretion of the court, and I cannot understand how a constitutional right can depend upon the discretion of a judge. I think that the law upon the subject is simply this: the statute gives a court discretion to break the continuity of a convict’s term of imprisonment by ordering him to be brought out of prison into court as a witness; and if the court abuses its discretion by not making the order when it clearly ought to have been made, such abuse is ground for a reversal of the judgment,—just as abuse of discretion in refusing to grant a continuance may be ground for reversal. I do not think that there is any constitutional question involved. If the word “ process,” as used in the constitution, is to be construed as referrihg to the extraordinary proceeding provided for in section 1567 of the Penal Code, then I see no escape from the proposition that defendants may in all cases have material witnesses brought out of the state prison, and that the discretion of a court cuts no figure in the matter. And I think further, that courts would not abuse their discretion in refusing such orders except in peculiar and extraordinary cases, — some of which are *492referred to in the opinion of Mr. Justice Paterson in Willard v. Superior Court, 82 Cal. 459. In the case at bar there were some peculiar circumstances which made it, I think, the duty of the court to order the witness brought into court.
¶2Upon other questions I concur in the opinion of the chief justice.
