Willard

I concur in the judgment. The statute certainly does not give the defendant in a criminal action an absolute right to an order for the attendance as witness of a convict imprisoned in the state prison. It gives a guarded and limited right to the prosecution (subject to the discretion of the court) to *461 have such an order, but it does not in terms give such a right to the defendant, either absolutely or upon conditions.

The general provision of section 1567 of the Penal Code, authorizing an order for the production of a prisoner “ when it is necessary,” is not confined to cases in which the prisoner may be needed as a witness. It applies equally where he is needed for any other purpose, as, for instance, where it is desired to try him upon some charge other than that upon w'hich he has been imprisoned, and the whole object of the section is to prescribe the manner of procuring his presence when needed. We must look to other portions of the statute to discover the cases in which his presence is necessary.

Ho section of the statute has been cited, and I know of none, which makes his presence necessary as a witness, or provides for an order for his production, except section…

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…

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…