Thornton, J., dissenting. I dissent. A defendant proceeded against for a felony has a right, under section 13, article 1, of the constitution of this state, “to have the process of the court to compel the attendance of witnesses on his behalf.” He has the same right to this process as he has “to appear and defend in person and with counsel.” Both are secured by the above section of the constitution. This process cannot be denied to him by any power of the state, whether by legislative, executive, or judicial. The constitution (section above noted) assures this right to a defendant accused [463]of felony. It needs no statute to confer it. The constitution confers it, and it cannot be taken away by statute.
Nor has the legislature attempted to deprive such defendant of this right. Section 1333 of the Penal Code by its very terms refers only to a witness for the people, not to a witness for the defendant. Section 1346 grants the right to the defendant to have the deposition of his witness taken, when the witness is confined in the state prison or in the county jail of a county other than that in which the defendant is to be tried, in the manner provided for in the case of a witness who is sick, but he is not bound to have the testimony of the witness so taken. He can waive his constitutional right and have the deposition taken, should he so elect. But it is entirely at his option to have the witness compelled to attend, or to have his testimony taken by deposition. The defendant may waive his right and resort to the privilege conferred on him by this section. Further privileges are granted a defendant by sections 1336 and 1337 of the Penal Code. Doubtless the accused would elect to have the deposition taken, if the witness was unable from illness to attend, rather than lose his testimony.
The legislature cannot, without a violation of section 13 of article 1 of the constitution, restrict one on trial in a criminal action to having the testimony procured by deposition.
The guaranty of the constitution above pointed out is for the benefit of the defendant in criminal actions. No such guaranty is given to the people; therefore section 1333 of the Penal Code was passed to enable the people to procure the attendance of an imprisoned witness. Without this statute it may be that the people would have no such right. Section 1346 gives the defendant an additional right, as does the last clause of section 13 of article 1 of the constitution. Both confer the privilege on defendant to take depositions in the categories expressed in them. But neither are limitations on the [464]constitutional guaranty. There is no rule of construction which countenances any such interpretation. They are in perfect harmony. One secures a right, the other grants a privilege. The defendant may waive his right and avail himself of the privilege, or may decline the privilege and cling to his right. When provisions of a constitution or statute are reconcilable, so that both can stand and have their full operation, the one cannot be regarded as a restriction of the other. Limitation is then out of the question. It is illogical to hold it a limitation.
It is said that the legislature has the right at any time, directly or indirectly, to provide that no person convicted of a felony shall testify in any action, civil or criminal. Granting that it can, it has not done so; and until it does so, courts must administer the law as written. Convicted felons are now competent witnesses. (Code Civ. Proc., secs. 1878, 1879, 1880, 1881.) But as at present advised, we are not prepared to hold that the legislature can, -while the section of the constitution above referred to is in force, enact that a witness, material for the defense of a person accused and on trial for a felony, shall be declared incompetent to testify for the defense. Certain we are that no such legislation will ever be attempted while the above-cited provisions of the constitution remain unchanged. It would be cruel to withhold such testimony from a person tried for an offense which may result in his deprivation of liberty.
The guaranty that a defendant shall “have the process of the court to compel the attendance of witnesses in his behalf,” as the guaranties of a speedy and public trial, and to appear and defend in person and with counsel, is assured in the same section of the constitution. Other guaranties are also expressed in the same section. The legislature cannot deprive defendant of any of these rights. To its praise it is said they have no where attempted it.
[465]The guaranties in section 13 of article 1 of the constitution came down to us for the most part from our English ancestors. They are of the great muniments of personal liberty. Some of them are included in the provisions of section 29 of the act of Parliament, known as Magna Charta. (See Co. Inst., 2d pt., p. 45, and notes following.) They are of too much value to be impaired by legislation, or frittered away by construction or interpretation. They should stand and be accorded in their entirety, unabridged and úndiminished.
The right of a defendant to have process to compel the attendance of his witnesses in court was substantially decided in People v. Dodge, 28 Cal. 448. It arose on an application for a continuance. The court held that the right of defendant to have the deposition of a witness taken under the statute as it then existed (see Wood's Dig., secs. 562-582) was an enlargement of his rights, and was not designed to impair the rule or abridge his “ (defendant’s) right to have the personal attendance of his witnesses at the trial. The court, per Sanderson, J. (all concurring), said on this point: “ A defendant in a criminal action is undoubtedly entitled to the personal attendance of his witnesses at the trial, if the same can be obtained without unreasonable delay.. Such is the policy of the law, not merely from considerations affecting the defendant ■ only, but also from considerations affecting the ends of public .justice, irrespective of individual interests, which is manifest from the fact that the depositions of such witnesses are allowed to be read in evidence only upon further evidence at the trial that their personal attendance cannot be obtained. (Sec. 582.) It is to the interest of the people, as well as the defendant, that the witnesses of the latter should be made to give their testimony in the presence of the jury, for we all know, by daily experience, how much weight is added to or taken from testimony by the personal appearance, bearing, and manner of the witness while under examina[466]tion; if these add to the weight of his testimony, the defendant ought not to be deprived of such effect, except upon the grounds of necessity; and if they detract therefrom, such effect should be secured to the people in order that the ends of public justice may be subserved. Thus this rule requiring the personal attendance of witnesses, if the same can be had, is founded upon considerations of the wisest policy; and the provisions of the statute whereby the defendant is enabled to examine conditionally on commission a witness who is about to leave the state, or is sick or infirm, as to afford reasonable grounds for apprehending that he will be unable to attend the trial, were not designed to impair the rule or abridge the previous rights of the defendant, but, on the contrary, to enlarge those rights by enabling him to secure testimony of which he would otherwise be deprived, and at the same time preserve the rule in full force, so far as the same could be done in view of the right conferred by the statute.” (28 Cal. 448, 449. See People v. Francis, 38 Cal. 183; People v. Mitchell, 64 Cal. 85.)
A defendant has the constitutional right to have the witnesses against him examined in open court and in his presence. By the guaranty of due process of law he has a right to be confronted with the witnesses for the prosecution. The correlative right is given him to have the witnesses in his behalf testify in open court.
The decision in People v. Dodge is of greater weight here in favor of the contention of the appellant, for the reason that it was pronounced under the constitution of 1849, in which the guaranty to a defendant, that he should have the process of the court to compel the attendance of witnesses in his behalf, was not contained as in the constitution of 1879. The right was then placed in the policy of the law, as shown by the sections of the statute referred to in the opinion. It was not in the constitution of 1849, unless included within “due process of law,” which was in that constitution. But was it so [467]included? (See definition of due process of law in Pennoyer v. Neff, 95 U. S. 733.) The opinion in Dodge’s case makes no reference to any constitutional provision, which would seem to indicate that it was not regarded by the members of the court as given in the organic law.
Suppose that this guaranty to a defendant, invoked here, has not been formally enacted into a statute. But it is clear that it is given by the constitution. And why is it not self-enacting ?
If the right is given by the constitution, courts are provided with ample power to execute and enforce it. (Code Civ. Proc., sec. 187, subd. 8.)
But the legislature has provided for the case before us in section 1567 of the Penal Code, which is in these words: " 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.”
The expression “ may be made ” leaves nothing to the discretion of the court. The word “ may ” must be held to mean “must ” when the rights of the public or of third persons are concerned. Such is the settled law. (See Abbott’s Dig., word May.) Here the right of the public and of a third person, the applicant for the writ, are both concerned. The public is concerned in assuring to the accused a fair trial, and the accused is concerned in having her witness testify viva voce in open court. (See People v. Dodge, supra.) Under section 1567 the lower court is bound to make the order. It has no discretion or option to refuse it. (28 Cal., supra.) “ When it is necessary,” is- shown by the affidavit of defendant. The court cannot disregard it.
People v. Hurtado, 63 Cal. 294, is in the same line, where this court said, as is said in that case, that the [468]provision in regard to depositions is for the protection of defendants; it certainly cannot mean that it is intended to take away a right assumed by the first part of section 13 of article 1 of the constitution. To so construe it "would take away a protection from defendants. It would deprive them of a substantial right guaranteed by the first portion of the section. Far from being a protection, it would be a disprotection of defendants. It would be taking away the more important means of protection.
That the order made under section 1567 is process is clear from section 7 of subdivision 15 of the Penal Code. If the word “writ” infers an order in writing, then such order is a writ or process under the subdivision of the section referred to. The court must make the order and issue the necessary writ or process to execute and carry out the order, which it has power to do under section 128, subdivision 8, and section 187, of the Code of Civil Procedure. The constitution and statutes furnish all the required machinery to assure this right to defendants and the enforcement of it.
One further proposition should be stated. It was said on the argument that the state alone has the right to bring a witness from the state prison. This was said with reference to section 1333, supra. The reason why this right was not further assured to a defendant by statutory enactment has been stated above. What a strange construction that a great state prosecuting one of its citizens, one of its - children, should retain a right which it would not grant to-the humblest of its citizens when prosecuted for a .public offense. Surely the state can have no feeling of revenge against one of its citizens, even though it is an erring one. Its prosecution of guilty persons should not be marked by any manifestation of vindictiveness. Such conduct on the part of the state in holding for itself a right which it would not allow to one of its citizens -would savor more of the
[469]cruelty of a step-mother than of the justice due from a protecting father. The state owes equal and exact justice to those under its authority in all proceedings against them. It can have no higher justifiable right as to witnesses than the defendant. Nor should nor does it ask any higher right in this regard.. If anything. it should be content with an inferior right. It holds the lists and appoints the president thereof, in which the contest between the people and the defendant on trial is waged. And the defendant might truly say that equal justice has not been done, when the state can compel the attendance of a witness to prove his guilt, and the defendant cannot compel the attendance of a witness in like circumstances to establish his innocence. Justice, as Lord Coke says, should be free, full, and speedy: free, because nothing is more unjust than justice which has to be bought; full, because justice ought not to halt or be maimed; and speedy, because delay is to some extent a denial of justice. (See Co. Inst., pt. 2, p. 55.)
It should be recollected that this witness brought from the state prison might clearly show the defendant’s freedom from guilt. The difference between the living speaking witness before a jury, and the inanimate lines of a deposition, is recognized by all familiar with courts of justice. As is well said in an old act of Parliament of 9 Edward II., styled Articuli Cleri, in referring to a trial by jury: “We hold, and shall be able to approve it to be a farre better course for matter of fact upon the testimonie of witnesses, sworne viva voce, then upon the conscience of any one particular man, being guided by paper proofes.” (See Co. Inst., pt. 2, p. 611.)
Especially would this be the case with a convict in prison brought from a state prison. He comes with the stain of conviction on his credit. But his appearance and manner, under the ordeal in open court of examination and cross-examination, might assuredly show to [470]court and jury that he is a perfectly reliable witness, and establish beyond question the innocence of the person on trial. Should a defendant then be deprived of this right? I say no. Emphatically no!
It is hardly necessary to reply to the argument that the petitioner here has a remedy at law, by appeal from a judgment of conviction on a bill of exceptions, setting forth the application for process, the refusal of it, and an exception. Such remedy is neither speedy nor adequate. We have a right to assume on this application that the testimony of the witness whose attendance is sought to be had will acquit the petitioner. Courts have no authority to require a defendant to submit to a conviction in order to procure her rights. This weight should not be laid on the defendant by a court. It would be the height of injustice to permit it. The court should be eager to relieve defendant of the burden. Long ago (in 1857) it was held in this court that the remedy at law must be speedy and adequate. (Merced M. Co. v. Fremont, 7 Cal. 132, 133. So, also, in Fremont v. Crippen, 10 Cal. 211; 70 Am. Dec. 711; Clark v. Crane, 57 Cal. 629.) In Merced M. Co. v. Fremont, supra, it was said: “The remedy by appeal is too slow and is not adequate.” And the writ was allowed. The same may be said here. The case cited from 7 California is undoubtedly law, and has been frequently followed by this court, and will be followed always when the case calls for it..
I am of opinion that the judge was bound to make the order asked for to procure the attendance of the witness, and that the writ here sought should issue.