Separate trials.

Discharg ing one of several defendants before verdict, that he may be a witness.

Same.

degrees he is guilty, he can be convicted of the lowest of such degrees only.

NOTE.-People vs. Gilmore, 4 Cal., p. 376; People vs. Backus, 5 Cal., p. 278; People vs. Apgar, 35 id., p. 391; People vs. Marsh, 6 Cal., p. 543; People vs. McNealy, 17 Cal., p. 332; and see note to Sec. 1016, ante, Subd. 3, where these cases are cited. Two offenses.— No conviction can be had under an indictment which charges two offenses, if demurred to. Burglary and housebreaking in the day-time are, and were intended to be, two offenses.-People vs. Tackett, Jan. Term, 1872 (No. 3140).

1098. (§ 367.) When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other cases the defendants jointly indicted may be tried separately or jointly, in the discretion of the Court.

NOTE.-Defendants jointly indicted may be tried separately.-People vs. McCalla, 8 Cal., p. 301. And for this purpose the plea of "not guilty" is a separate plea. See note to Sec. 1016, ante. Electing to be tried separately, and being so tried, one is a witness for the other.-People vs. Labra, 5 Cal., p. 183.

1099. (§ 368.) When two or more persons are included in the same indictment, the Court may, at any time before the defendants have gone into their defense, on the application of the District Attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the people.

NOTE.-People vs. Bruzzo, 24 Cal., p. 41. A codefendant is a competent witness on the trial of another, notwithstanding the objection of the defendant, and may testify to any facts in his knowledge, whether they tend to criminate himself or not. He must be informed by the Court that he need not make any statement which would criminate himself. Whether he does so

or not is his own business.-People vs. Rodundo, Oct. Term, 1872 (No. 3369).

1100. (§ 369.) When two or more persons are included in the same indictment, and the Court is of opinion that in regard to a particular defendant there

is not sufficient evidence to put him on his defense, it must order him to be discharged from the indictment before the evidence is closed, that he may be a witness for his codefendant.

NOTE. When tried separately, each may testify for the other.-People vs. Newberry, 20 Cal., p. 430. A separate trial may in all cases be had under Sec. 1098, ante, and when so tried, each is a witness for the other. People vs. Labra, 5 Cal., p. 183.

such

1101. (§ 370.) The order mentioned in the last Effect of two sections is an acquittal of the defendant dis- discharge. charged, and is a bar to another prosecution for the same offense.

NOTE.-People vs. Bruzzo, 24 Cal., p. 41.

1102. The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this Code.

NOTE.-See Code of Civil Procedure, Part IV, “Of evidence;""Definition of terms," Sec. 7, ante; Construction," Sec. 4, ante; and Political Code, Part V, "Definition and sources of law, and effect of the Codes."

EFFECT OF EVIDENCE.-(Code Civ. Pro., Sec. 2061.) Act and intent must be united.-Sec. 20, ante. Defendant may be a witness in his own behalf.-Code Civ. Pro., Sec. 1879, and note. This modifies the rule that the intent of the accused is to be inferred from his acts and language, since he may, by being a witness in his own behalf, explain what he meant.-People vs. Farrell, 31 Cal., p. 576. It was error to rule out a question in regard to defendant's opportunities for hearing and knowing of the dangerous character of the deceased, on the ground that the defendant could best testify himself on that subject, "the defendant was not called upon to offer himself to prove any fact in the case, nor can any presumption be properly indulged against him for not doing so."-People vs. Anderson, 39 Cal., p. 704. It is not a valid objection to the examination of a witness that his name is not indorsed on. the indictment. People vs. Bonney, 19 Cal., p. 426; People vs. Symonds, 22 Cal., p. 348. See, also, People vs. Joselyn, 29 id., p. 562. Any witness may be exam

Rules of

evidence in

civil

applicable to criminal cases, except, etc.

ined, but if his name is not indorsed on the indictment and his introduction is a surprise, it may, on a proper showing, be ground for postponement for surprise.— People vs. Freeland, 6 Cal., p. 96. The venue or locus delicti must in all cases be shown to warrant a conviction.-People vs. Parks, July Term, 1872 (No. 3338). If no corpus delicto is shown, there can be no conviction of the offense.-People vs. Jones, 31 Cal., p. 565; People vs. Long, January Term, 1872 (No. 3154).

WITNESSES, AND THEIR COMPETENCY.-A party may show a want of competency by examining him on his voir dire, or prove it by other competent testimony. See People vs. Anderson, 26 Cal., p. 129, where the rules of such examination are fully stated; see, also, Co. Civ. Pro., Secs. 1878-1881, and notes; see on the subject of testimony of blacks and Chinese, People vs. Howard, 17 Cal., p. 63; People vs. Awa, 27 Cal., p. 638; People vs. George Washington, 36 Cal., p. 658; and People vs. Brady, 40 Cal., p. 207. A witness may testify falsely, and do so innocently, or by mistake, in which case the rule that "if false in one particular false in all" does not apply. It applies only when he does so willfully.-People vs. Strong, 30 Cal., p. 151. When there are circumstances of complicity between the prisoner and his wife, her exclamations at the time of the killing are testimony if in the presence or hearing of the prisoner.-People vs. Murphy, April Term, 1872 (No. 3113); see, also, same case and same ruling, 39 Cal., p. 56. The defendant may testify on his trial, but not in a preliminary examination (under the statute of April 2, 1866). A statement made before the committing magistrate is not authorized to be under oath, but it must be in writing. If it is given under oath, it is error to allow his statements thus made to be used or given in proof on his trial.-People vs. Gibbons, April Term, 1872 (No. 3274). Since by, the rules of evidence (Part IV, Sec. 1879, Co. Civ. Pro.) all persons are witnesses, there is no reason why a defendant may not be a witness on his examination, as well as on the trial. Prisoner may be asked in cross-examination a question, though his answer will not be the best evidence in degree.-People vs. Snellie, April Term, 1872, (No. 2959). A witness, though not an expert, may give his opinion or impression of the mental condition of one dying from a mortal wound received at the hands of the defendant.-People vs. Sandford, January Term, 1872 (No. 2916). "It approaches knowledge, and is knowledge, so far as the imperfection of human nature will permit."-Judge Gaston, 2 Iredell, p. 78.

Dying declarations (id.) admitted, though deceased had no religious belief. Const., Art. I, Sec. 4, abrogates the common law rule.

IMPEACHMENT OF WITNESS.-How far cross-examination may be extended for that purpose, and in what it may consist.-People vs. Donovan, April Term, 1872 (No. 3221). A proper foundation is laid to impeach the credibility of a witness by calling attention to the time, place, and parties, and to the testimony given previously by witness before a Coroner. The testimony as taken down and signed by witness at the Coroner's inquest may be introduced to impeach the witness, when taken as directed by statute.-People vs. Devine, October Term, 1872. To discredit a witness by a conviction, it is not the best evidence in degree to ask him whether or not he was so convicted; the record is the best evidence, and must be produced, when such proof is permissible.-People vs. McDonald, 39 Cal., p. 697; also, People vs. Rinehart, id., p. 449. In each of these cases the defendant was his own witness. So, also, in Clark vs. Reese, 35 Cal., p. 96. A party as a witness drops the character of party and assumes that of witness, and cannot be forced to answer questions which tend to degrade his character.-1 Greenleaf Ev., Sec. 457; 2 Phil. Cr. C. E. & H., notes, p. 939; Newcomb vs. Griswold, 24 N. Y., p. 298. It is not error to allow witness to use "plan" of a house to illustrate his evidence; it would have been better to have first proved the plan, but not being offered as evidence it was not necessary.-People vs. Murphy, 39 Cal., p. 56. Privileged communications.-See People vs. Atkinson, 40 Cal., p. 285; Whar. Am. Cr. Law, Sec. 773. How character of witness may be attacked.-See 1 Whar. Am. Cr. Law, Secs. 814-816. And how contradicted or sustained.-Id., Secs. 817-821. How to impeach a witness on statements made out of Court.-See People vs. Garnett, 29 Cal., p. 622.

WITNESSES EXCLUDED.-In general the Court will, on the application of either of the parties, direct that all the witnesses but the one under examination shall leave the Court.-Roscoe's Cr. Ev., p. 162; People vs. Duffy, 1 Wheeler's C. C., p. 123. And the right of either party to require the unexamined witness to retire, may be exercised at any period of the case.-Id. What is sometimes called placing witnesses under the rule, is to call them all to the bar of the Court, swearing them, and then giving them the charge not to remain in Court while any one is being examined, under penalty of contempt. Witnesses may be excluded while one is being

examined, on motion, in the sound discretion of the Court.-People vs. Garnett, 29 Cal., p. 622; see Sec. 867, ante. Should a witness be present, in disobedience to the order excluding him, it is no ground for rejecting him as a witness; he is, however, thereby in contempt of Court.-People vs. Bosovitch, 20 Cal., p. 436. Prosecution cannot be compelled to introduce particular witnesses.-People vs. Jim Ti, 32 Cal., p. 60. A defendant ought not to be deprived of the personal presence at the trial of a witness which may be had.-People vs. Dodge, 28 Cal., p. 445.

EXCLUDING STATEMENTS.-Statements made by the wounded party three or four days after receiving the wound not being part of the res geste nor dying declarations, were properly excluded.-People vs. McLaughlin, October Term, 1872 (No. 1005); Com. vs. Densmore, 12 Allen, p. 587 (Mass.); Com. vs. Hackett, 2 id., p. 136; Rose. Crim. Ev., p. 26; Stark Ev. (Am. ed.), p. 45; 1 Grenl. Ev., Sec. 109. Statements of the injured party tending to show innocence of the prisoner are excluded properly.-People vs. McCrea, 32 Cal., p. 100.

DISABILITY OF WITNESS.-A pardon which does not extend to the offense, but simply to the offender, does not give one convicted of an infamous crime the right to be believed under oath.-People vs. Bowen, April Term, 1872 (No. 2023.)

EVIDENCE ON FORMER TRIAL MAY BE USED ON SECOND, WHEN.-That which a witness testified to on the former trial of the same case, and between the same parties, if since deceased, may be given in evidence on a second trial. The rule is the same in civil and criminal cases.-People vs. Murphy, April Term, 1872 (No. 3113); same case, 39 Cal., p. 56. The minutes of such testimony, made at the time, may be read in evidence, and in the case of Metis vs. O'Hara, 4 Binn., p. 110; approved in Cornell vs. Green, 10 S. & R., p. 17, the recollection of the witness, by the aid of such notes, was received. Recent cases relax the old rule that the precise language must be used.-Id. See Secs. 20422054, Code Civil Procedure.

GENERAL RULES for the examination of witnesses, direct and cross-examination defined.-Id., Sec. 2045. Direct evidence for the prosecution. In all prosecutions two facts are to be proved: 1. The commission of an offense. 2. That the defendant committed it.-People vs. Jones, 31 Cal., p. 565. Unless an offense is proved no one is or can be guilty of the charge, and in such case it is not error for the Court to instruct an acquittal.—Id