Willard v. Superior Court

Paterson, J. The question involved in this application for a writ of mandate is, whether a person held for trial on a charge of felony has the right to have the process of the court to compel the attendance in his behalf of witnesses who are confined as prisoners in the state prison. Title 13 of the Penal Code, which is entitled, “ Proceedings for bringing prisoners imprisoned in the state prison, or the jail of another county, [457] before a court,” provides that “ when it is necessary to have a person imprisoned in the state prison brought before any court, .... an order for that purpose may be made by the court and executed by the sheriff of the county where it is made.” If this were the only provision of law bearing on the subject, it would be the duty of the court, on a proper showing by the defendant as to the advisability and materiality of the proposed testimony, to make an order requiring the sheriff to bring the witness from the prison to testify at the trial; but other provisions of the constitution and the codes somewhat becloud the question. Section 1333 of the Penal Code provides that “when the testimony of a material witness for the people is required in a criminal action before a court of record of this state, and such witness is a prisoner in the state prison, or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, may be made by the court in which the action is pending, or by the judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall only be made upon the affidavit of the district attorney, or other person, on behalf of the people, showing that the testimony is material and necessary; and, even then, the granting of the order shall be in the discretion of the court or judge.” Section 1346 provides that “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 defendant, in the manner provided for in the case of a witness who is sick,” etc. If the legislature had intended to authorize the defendant in a criminal action to compel the attendance of such witnesses, it would have done so doubtless in the same chapter with section 1333 of the Penal Code, [458] which chapter is devoted to the subject of compelling the attendance of witnesses. The facts that in that chapter provision is carefully made for the production of witnesses on behalf of the prosecution, that nothing is said about witnesses on behalf of defendant, and that in the next chapter, which relates to the examination of witnesses conditionally, provision is made for taking depositions on behalf of the defendant, and nothing is said about depositions on behalf of the prosecution, are significant. Reading the three sections together, it would seem that the legislature intended two things: 1. That the court might, in any case, on ^ a proper showing that the witness was material and necessary, whether for defendant or for the prosecution, make an order for his attendance, — that is the purport of section 1567, and there is nothing in the other sections to overcome it; 2. That the court, when satisfied that the examination of a witness on behalf of a defendant is necessary, may order that he be examined conditionally, but no deposition shall be taken on behalf of the prosecution, the defendant having the right to be confronted at the trial by the witnesses against himi/' In neither of these cases does an order issue as a matter of right. It issues only when it appears to the satisfaction of the trial court that the witness is necessary. The statute has lodged in that court the right to determine whether the witness is necessary or not, and being thus clothed with discretion, it is not subject to the mandate of this or any other court. For any abuse of that discretion, the aggrieved party has his remedy, which is the same as for all other mere errors of judgment. The legislature, however, recognizing the liability of the criminal classes to abuse the process of the court, if given the privilege, as a matter of right, to command the attendance of persons confined in the state prison, has wisely left it to the court to say whether the witness called for is necessary; and in order to cut [459] off as many cases of necessity as possible, has provided for the taking of depositions. There may be cases in which the personal attendance of a witness confined in the state prison is necessary for the purpose of identity, or for the exhibition of some physical or mental peculiarity, which could not well be described in depositions; but it never was intended to give to a defendant, charged with crime, the power to summon convicts to testify to his good behavior while among them, or at any other time; yet, if the position taken by petitioner be correct, this might be done, the county in which a defendant is to be tried put to great and unnecessary expense, and the courts and officers of the state greatly harassed by contumacious and vindictive criminals. But it is claimed by petitioner that if this be the proper construction of the acts of the legislature, then those acts are in violation of the provisions of article 1, section 13, of the constitution, and are void. That section provides that “in criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.” It is contended that, under this provision, the petitioner is entitled, as a matter of right, to an order of the court directing the sheriff to bring from the state prison to testify in his behalf any prisoner or prisoners confined therein, whom he may state in an affidavit to be necessary and material witnesses in his behalf. But the concluding sentence of the section, reads as follows: “The legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases other than cases of homicide, when there is reason to believe that the witness, from inability or other cause, will not attend at the trial.” And it is said that this portion of section 13 does not [460] in any way limit the right guaranteed in the first clause, quoted above, and that it was decided in People v. Hurtado, 63 Cal. 294, that the last sentence of the section was intended to grant to the accused further and additional rights for his protection, by extending to him the privilege of taking depositions in cases where, from inability, or other cause, the witness could not be brought by the process of the court to testify. We do not so understand the case referred to. The court there said: “ The section, with the exception of the last clause, relates to the privileges of persons accused of crime.....There can be little doubt that the right to due process of law would include the common-law right to be confronted by his witnesses. To prevent misunderstanding, hoioever, the framers of the constitution added: ‘ The legislature shall have power to provide for the taking,’ etc.” It is sufficient to say, however, that the question before us here was not an issue in that case. We think that the legislature, in the provisions adverted to above, has strictly followed the letter and the spirit of the constitution. There has been no infringement upon the constitutional rights of the petitioner, or any other person charged with felony. It may be said in conclusion that the legislature has the right, at any time, directly or indirectly, to provide that no person convicted of felony shall testify in any action, civil or criminal. The petition for a writ of mandate is denied. Sharpstein, J., McFarland, J., and Fox, J., concurred. Works, J., dissented.