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" Deposition of a material witness who is a convict, how and

when taken. SEC. 1346. 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 de

fendant, in the manner provided for in the case of a witness 1 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 1 directors of the state prison, whose duty it shall be to act with#out compensation. Every officer, before whom testimony shall et be taken by virtue hereof, shall have authority to administer, # and shall administer, an oath to the witness that his testimony E shall be the truth, the whole truth, and nothing but the truth.

[Pen. Code.]

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Persons imprisoned in state prison or jail of another county,

how brought before court. SEC. 1567. When it is necessary to have a person imprisoned in the state prison brought before any court, or a person imprisoned in a county jail brought before a court sitting in another county, an order for that purpose may be made by the court, and executed by the sheriff of the county where it is made. [Pen. Code.]

This section is not in conflict with that provision of the constitution which requires that in criminal prosecutions, the party accused shall have the right to have the process of the court to compel the attendance of witnesses in his behalf: 82 Cal. 456.

This section applies where the presence of the prisoner is necessary for another purpose than to testify as a wit

For instance, where it is desired to try him on some other charge. (Dicta Beatty, C. J.): 82 Cal. 456. If witness be a prisoner, how brought.

SEC. 1995. If the witness be a prisoner, confined in a jail or prison within this state, an order for his examination in the

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prison upon deposition, or for his temporary removal and production before a court or officer, for the purpose of being orally examined, may be made as follows:

1. By the court itself in which the action or special proceeding is pending, unless it be a justice's court.

2. By a justice of the supreme court, or a judge of the superior court of the county where the action or proceeding is pending, if pending before a justice's court, or before a judge or other person out of court. [Code Civil Procedure.] On whose motion.

SEC. 1996. Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness and its materiality. [Code Civil Procedure.]

How examined.

SEC. 1997. If the witness be imprisoned in the county where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon by deposition. (Code Civil Procedure.]

As to credibility of prisoners, see note under Disbarment
of Convicts, page 110.

D. RELATING TO PUBLICATION OF NOTICE.

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Publication of notice.

SEC. 4458. Whenever any publication, or notice by publication, or official advertising is required to be given or made in this state or by any officer *

[it] shall be given or made only in a newspaper of general circulation where such a newspaper is published within the jurisdiction of such official. Where no newspaper of general circulation is published within the jurisdiction of such official then such publication or notice by publication or official advertising shall be given or made in a newspaper of general circulation published nearest thereto. [Pol. Code.]

By provisions of this section an attempt was made to provide regulations for publications required by either of the codes or by any law of the state, to be made by any officer now existing or hereafter created in this state, or any political subdivision thereof; thus it is attempted to include a large class of publications which are not mentioned or referred to in this title: 141 Cal. 331.

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Publication, how printed.

SEC. 4459. All publications, or notices by publication, or official advertisements referred to in the preceding section, must be set in type not smaller than nonpareil, and must be preceded with words printed in black face type not smaller than nonpariel, describing or expressing in general terms the purport or character of the notice intended to be given. [Pol. Code.]

Publication of notice of hearing of probate of will in a law journal published daily and of general circulation is valid: 141 Cal. 331.

Newspaper of general circulation defined.

SEC. 4460. A newspaper of general circulation is a newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, having a bona fide subscription list of paying subscribers and which shall have been established, printed and published at regular intervals, in the state, county, city, city and county, or town, where such publication, notice by publication, or official advertising is given or made, for at least one year preceding the date of such publication, notice or advertisement. A newspaper devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, race or denomination, or for any number of such classes, professions, trades, callings,

or denominations when the avowed purpose is to entertain or instruct such classes, is not a newspaper of general circulation. [Pol. Code.]

A paper which, according to its usual custom, is published every day of the week except Sunday is a daily newspaper: 45 Cal. 30.

Many newspapers published in this and other countries are devoted chiefly to special interests, such as political or religious newspapers; others are devoted exclusively to literature; others contain advertisements, etc. It is not the particular kind of intelligence published that stitutes one publication

newspaper rather than the other: Kerr vs. Hitt, 75 Ill. 51.

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Newspaper of general circulation.

SEC. 4462. Whenever a newspaper shall desire to have its standing as a newspaper of general circulation, as that term is defined in section 4460, ascertained and established, it may, at its option, by its publisher, manager, editor or attorney, file a verified petition in the superior court of the county, or city and

county, in which it is established, printed and published, setting forth the facts which justify such action. The petition or the substance thereof shall be published for ten days in the newspaper petitioning, and if the court so directs, in some other newspaper, together with a notice that the petitioner intends on a certain day to apply for the order herein mentioned. Upon proof being made of the publication of such petition and notice. the court shall set the same for hearing, and at any time prior to, or on the day so set, or prior to or on any day to which it may be continued, any person may appear and contest the petition. The court shall hear the proofs of the petitioner and contestant, if there be any, and shall within ten days thereafter render its decision and judgment and the clerk shall enter the same in the records of the court. The decision and judgment therein provided for may be vacated, modified or set aside by the court on its own motion, or on the motion of any person, whether a party to the original proceeding or not, upon a verified statement of facts, upon ten days' notice to the petitioner, and upon a satisfactory showing made to the court that such newspaper has ceased to be a newspaper of general circulation as that term is defined in section 4460 ; but all publications made in such newspaper during the period it was adjudged to be a newspaper of general circulation shall be deemed and held valid and sufficient. Nothing contained in this section shall be held or construed to be obligatory or as requiring any newspaper to comply with its provisions in order to be in fact, or in law, a newspaper of general circulation, as that term is defined in section 4460, but any newspaper may, at its option, avail itself of the provisions of this section. [Pol. Code.]

E. AS TO MISCELLANEOUS CRIMINAL STATUTES.

Crimes and public offenses.

SEC. 15. A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction either of the following punishments :

First-Death.
Second-Imprisonment.
Third-Fine.

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Fourth-Removal from office.

FifthDisqualification to hold and enjoy any office of honor, trust or profit in this state. [Pen. Code.]

Description of acts necessary to constitute crime does not make commission of such acts a crime. Punishment is as necessary to constitute a crime as definition. Without either there is no crime: 93 Cal. 427.

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Crimes, how divided.
SEC. 16. Crimes are divided into :

First-Felonies; and

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Second-Misdemeanors. [Pen. Code. ]

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Crimes defined.

SEC. 17. A felony is a crime punishable with death, or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime punishable by imprisonment in the state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. [Pen. Code.]

For the acts which a legislature may or may not declare criminal, see monographic note, 78 Am. St. Rep. 235 and 274.

Whether an offense is a felony or a misdemeanor depends upon the judgment rendered by the trial court: 16 Cal. 187, and 137 Cal. 267.

Although the offense charged in the indictment may, in the discretion of the court, in any particular case, be only punishable by fine, yet if the offense is one that is punishable by imprisonment in the state's prison, it must be prosecuted with the forms and solemnities of a felony: 20 Cal. 117.

Punishment of felony, when not otherwise prescribed.

SEC. 18. Except in cases where a different punishment is prescribed by this code, every offense declared to be a felony is punishable by imprisonment in the state prison not exceeding five years. [Pen. Code.]

Punishment of misdemeanor, when not otherwise prescribed.

SEC. 19. Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not

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