Attorney of the county, with a copy of the undertaking and certificate, order that the bail be exonerated, and on filing the order and the papers used on the application, they are exonerated accordingly. etc, the may be arrested for of a surren 1301. (§ 533.) For the purpose of surrendering By whom, the defendant, the bail, at any time before they are defendant finally discharged, and at any place within the State, may themselves arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. der. On a surrender, before forfeiture, deposited to be etc. 1302. (§ 534.) If money has been deposited instead of bail, and the defendant, at any time before the forfeiture thereof, surrenders himself to the officer to money whom the commitment was directed, in the manner refunded, provided in the last two sections, the Court must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon a notice of five days to the District Attorney, with a copy of the certificate. ARTICLE VII. FORFEITURE OF THE UNDERTAKING OF BAIL OR OF THE DEPOSIT OF MONEY. SECTION 1305. In what cases, and how ordered. When and how forfeiture may be discharged. 1306. Forfeiture to be enforced by action. 1307. Deposit, when forfeited, how disposed of. In what cases, and ordered. 1305. (§§ 535, 536.) If, without sufficient excuse, the defendant neglects to appear for arraignment or for how trial or judgment, or upon any other occasion when his presence in Court may be lawfully required, or to surrender himself in execution of the judgment, the Court must direct the fact to be entered upon its minutes, and the undertaking of bail, or the money deposited how forfeiture may be When and instead of bail, as the case may be, is thereupon declared forfeited. But if at any time before the final discharged. adjournment of the Court, the defendant or his bail appear and satisfactorily excuse his neglect, the Court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. Forfeiture to be action. 1306. (§ 537.) If the forfeiture is not discharged, enforced by as provided in the last section, the District Attorney may at any time after the adjournment of the 'Court proceed by action only against the bail upon their undertaking. Deposit, when for disposed of. NOTE.-People vs. Carpenter, 7 Cal., p. 402. 1307. (§ 538.) If, by reason of the neglect of the feited, how defendant to appear, money deposited instead of bail is forfeited, and the forfeiture is not discharged or remitted, the Clerk with whom it is deposited must, immediately after the final adjournment of the Court, pay over the money deposited to the County Treasurer. In what cases. ARTICLE VIII. RECOMMITMENT OF THE DEFENDANT, AFTER HAVING GIVEN BAIL OR SECTION 1310. In what cases. 1311. Contents of order.. 1312. Defendant may be arrested in any county. 1313. If for failure to appear for judgment, defendant must be committed. 1314. If for other cause, he may be admitted to bail. 1315. Bail in such case, by whom taken. 1316. Form of the undertaking. 1317. Bail must possess what qualifications, and how put in. 1310. (§ 539.) The Court to which the committing magistrate returns the depositions, or in which an indictment or appeal is pending; or to which a judg ment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes, direct the arrest of the defendant and his commitment to the officer to whose custody he was committed at the time of giving bail, and his detention until legally discharged, in the following cases: 1. When, by reason of his failure to appear, he has incurred a forfeiture of his bail, or of money deposited instead thereof; 2. When it satisfactorily appears to the Court that his bail, or either of them, are dead or insufficient, or have removed from the State; 3. Upon an indictment being found in the cases provided in Section 985. order. 1311. ($540.) The order for the recommitment Contents of of the defendant must recite generally the facts upon which it is founded, and direct that the defendant be arrested by any Sheriff, Constable, Marshal, or Policeman in this State, and committed to the officer in whose custody he was at the time he was admitted to bail, to be detained until legally discharged. may be arrested in any county. 1312. (§ 541.) The defendant may be arrested Defendant pursuant to the order, upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest, except that when arrested in another county the order need not be indorsed by a magistrate of that county. If for failure to appear for judgment, 1313. (§ 542.) If the order recites, as the ground upon which it is made, the failure of the defendant to appear for judgment upon conviction, the defendant defendant must be committed according to the requirement of committed. the order.. must be cause, ho may be admitted to 1314. (§ 543.) If the order be made for any other If for other cause, and the offense is bailable, the Court may fix the amount of bail, and may cause a direction to be inserted in the order that the defendant be admitted bail. Bail must possess to bail in the sum fixed, which must be specified in the order. 1315. (§ 544.) When the defendant is admitted to bail, the bail may be taken by any magistrate in the county, having authority in a similar case to admit to bail, upon the holding of the defendant to answer before an indictment, or by any other magistrate designated by the Court. 1316. (§ 545.) When bail is taken upon the recommitment of the defendant, the undertaking must be in substantially the following form: day of —, An order having been made on the A. D. eighteen by the Court (naming it), that A. B. be admitted to bail in the sum of dollars, in an action pending in that Court against him in behalf of the people of the State of California, upon an (information, presentment, indictment, or appeal, as the case may be), we, C. D. and E. F., of (stating their places of residence and occupation), hereby undertake that the above named A. B. will appear in that or any other Court in which his appearance may be lawfully required upon that (information, presentment, indictment, or appeal, as the case may be), and will at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fails to perform either of these conditions, that we will pay to the people of the State of California the sum of dollars (insert the sum in which the defendant is admitted to bail). NOTE.-See note to Sec. 1278. 1317. (§ 546.) The bail must possess the qualifi what quali- cations, and must be put in, in all respects, in the fications, and how put in. manner prescribed in Article II of this Chapter. CHAPTER II. WHO MAY BE WITNESSES IN CRIMINAL ACTIONS. SECTION 1321. Who are competent witnesses. 1322. When husband and wife are not competent witnesses. competent 1321. The rules for determining the competency Who are of witnesses in civil actions are applicable also to witnesses. criminal actions and proceedings, except as otherwise provided in this Code. NOTE.-These rules are found in the Code of Civil Procedure, and are as follows. (The numbers in parentheses refer to the sections of the old Practice Act): SEC. 1879. (? 391.) All persons, without exception, otherwise than are specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although, in every case, the credibility of the witness may be drawn in question, as provided in Section 1847. SEC. 1880. (2394.) The following persons cannot be witnesses: 1. Those who are of unsound mind at the time of their production for examination; 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. SEC. 1881. (22 395, 396, 397, 398, 399.) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: 1. A husband cannot be examined for or against his wife, without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other; |