Willard

I concur in the judgment of reversal; but I fear that some language in the leading opinion will be construed as holding that a defendant has a constitutional right to have a convict brought out of the state prison, whenever the former is ready to swear that the latter is a material witness. It is admitted, however, that whether or not a convict will be ordered out of prison into court (and his term of imprisonment thus interfered with) depends upon the discretion of the court, and I cannot understand how a constitutional right can depend upon the discretion of a judge. I think that the law upon the subject is simply this: the statute gives a court discretion to break the continuity of a convict’s term of imprisonment by ordering him to be brought out of prison into court as a witness; and if the court abuses its discretion by not making the order when it clearly ought to have been made, such abuse is ground for a reversal of the judgment,—just as abuse of discretion in refusing to grant a continuance may be ground for reversal. I do not think that there is any constitutional question involved. If the word “ process,” as used in the constitution, is to be construed as referrihg to…

Appeal from a judgment of conviction on a charge of receiving stolen goods, and from an order denying defendant’s motion for a new trial.

A preliminary statement of the leading facts of the case is necessary to a proper understanding of the points urged in support of the appeal.

For about eighteen months prior to March 11,1889, the defendant and one Frank Willard lived together in the city of Santa Barbara, holding themselves out as man and wife, and the defendant claims that they were in fact married by contract in San Bernardino in August, 1884, *484 and from that time openly assumed towards each other the mutual relations of husband and wife. The people, on the other hand, contend that they were not married, but -were living in a meretricious relation. The rulings of the court as to the evidence offered upon this matter present one of the principal questions in the case. While the defendant and said Willard were so living together under the assumed name of Strohm, during the months of November and December, 1888, and January, February, and March, 1889, a series of burglaries was committed in Santa Barbara, and a large quantity of personal property was stolen. On the morning…