court must direct the fact to be entered upon its minutes, and the undertaking of bail, or the money deposited instead of bail, as the case may be, must thereupon be declared forfeited. But if at any time within twenty days after such entry in the minutes, 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. 1905-701.

1306. If the forfeiture is not discharged, as provided in the last section, the district attorney may at any time after twenty days from the entry upon the minutes, as provided in the last section, proceed by action against the bail upon their undertaking. 1905702.

1307. If, by reason of the neglect of the 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, at the end of thirty days, unless the court has before that time discharged the forfeiture, pay over the money deposited to the county treasurer. 1905-702.

ARTICLE VIII.

Recommitment of Defendant, After Having Given Bail or Deposited Money Instead of Bail.

1310. The court to which the committing magistrate returns the depositions, or in which an indictment, information, or appeal is pending, or to which a judgment 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 or information filed in the cases provided in section nine hundred and eighty-five. 1880-27.

1311. The order for the recommitment of the defendant must recite generally the facts upon which it is founded, and direct 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.

1312. The defendant may be arrested 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.

1313. 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 must be committed according to the requirements of the order.

1314. If the order be made for any 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 to bail in the sum fixed, which must be specified in the order.

1315. 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 bail, upon the holding of the defendant to answer before an indictment, or by any other magistrate designated by the court.

1316. When bail is taken upon the recommitment of the defendant, the undertaking must be in substantially the following form:

An order having been made on the day of 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).

1317. The bail must possess the qualifications, and must be put in, in all respects, in the manner prescribed in article two of this chapter.

CHAPTER II.

Who may be Witnesses in Criminal Actions.

1321. Who are competent wit- 1323. Defendant not compe

nesses.

1322. Husband and wife.

tent when.

1321. The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this code.

1322. Neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties, except with the consent of both, or in case of criminal actions or proceedings for a crime committed by one against the person or property of the other, or in cases of criminal violence upon one by the other, or in cases of criminal actions or proceedings for bigamy, or adultery, or in cases of criminal actions or proceedings brought under the provisions of sections 270 and 270a of this code. 1911-270.

1323. A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any manner prejudice him nor be used against him on the trial or proceeding.

1326. The process by which the attendance of a witness before court or magistrate is required is a subpoena; it may be signed and issued by:

1. A magistrate before whom a complaint is laid, for witnesses in the state, either on behalf of the people or of the defendant.

2. The district attorney, for witnesses in the state, in support of the prosecution, or for such other witnesses as the grand jury, upon an investigation pending before them, may direct.

3. The district attorney, for witnesses in the state, in support of an indicment or information, to appear before the court in which it is to be tried.

4. The clerk of the court in which an indictment or information is to be tried; and he must, at any time, upon application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him as clerk, for witnesses in the state, as the defendant may require. 1880-27.

1327. A subpoena authorized by the last section must be substantially in the following form:

The People of the State of California to A.B.:

You are commanded to appear before C.D., a justice of the peace of- -township, in- -county (or as the case may be ), at (naming the place), on (stating the day and hour), as a witness in a criminal action prosecuted by the people of the state of California against E.F.

Given under my hand this

-day of

A. D. eighteen G. H., Justice of the Peace, (or "J. K., District Attorney," or "By order of the court, L. M., Clerk," or as the case may be). If books, papers, or documents are required, a direction to the following effect must be contained in the subpoena: "And you are required, also, to bring with you the following" (describing intelligibly the books, papers, or documents required).

1328. A subpoena may be served by any person, but a peaceofficer must serve in his county any subpoena delivered to him for service, either on the part of the people or of the defendant, and must, without delay, make a written return of the service, subscribed by him, stating the time and place of service. The service is made by showing the original to the witness personally and informing him of its contents.

1329. When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, upon a subpoena or in pursuance of any undertaking, and it appears that he has come from a place outside of the county, or that he is poor and unable to pay the expenses of such attendance, the court, at its discretion, if the attendance of the witness be upon a trial, by an order upon its minutes, or, in any other case, the judge, at his discretion, by a written order, may direct the county auditor to draw his warrant upon the county treasurer in favor of witness for a reasonable sum, to be specified in the order, for the necessary expenses of the witness. 1876-117.

1330. No person is obliged to attend as a witness before a court or magistrate out of the county where the witness resides, or is served with the subpoena, unless the judge of the court in which the offense is triable, or a justice of the supreme court, or a judge of a superior court, upon an affidavit of the district attorney or prosecutor, or of the defendant, or his counsel, stating that he believes the evidence of the witness is material, and his attendance at the examination or trial necessary, shall indorse on the subpoena an order for the attendance of the witness. 1880-34.

1331. Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the court or magistrate as a contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he show good cause for his non attendance, is liable to the defendant in the sum of one hundred dollars, which may be recovered in a civil action.

1332. When a witness has entered into an undertaking to appear, upon his failure to do so the undertaking is forfeited in the same manner as undertakings of bail.

1333. When the testimony of a material witness is required in a criminal action, before a court of record of this state, or in an examination before a grand jury or magistrate for an offense triable in the superior court and such witness is a prisoner in a 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, grand jury or magistrate, may be made by the superior court of the county in which such action or examination is pending or by a judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall be made only upon the affidavit of the district attorney or prosecutor, or of the defendant or his counsel, stating that the testimony is material and necessary; and even then granting of the order shall be in the discretion of said superior court or a judge thereof. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, grand jury or magistrate, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be a proper charge against, and shall be paid by, the county in which the order shall be made. 1915-731.