missioner named in the commission, at a specified time and place. commission 2037. If a commission has not been issued, and it How, if no appears to a District, County Judge, or Justice, by affidavit satisfactory to him: 1. That the testimony of the witness is material to either party; 2. That a commission to take the testimony of such witness has not been issued; 3. That, according to the law of the State where the action or special proceeding is pending, the deposition of a witness taken under such circumstances, and before such Judge or Justice, will be received in the action or proceeding; -He must issue his subpoena, requiring the witness to appear and testify before him at a specified time and place. how taken. 2038. Upon the appearance of the witness, the Deposition, Judge or Justice must cause his testimony to be taken in writing, and must certify and transmit the same to the Court or Judge before whom the action or proceeding is pending, in such manner as the law of that State requires. ARTICLE VI. GENERAL RULES OF EXAMINATION. SECTION 2042. Order of proof, how regulated. 2043. Witnesses not under examination may be excluded. 2044. Court may control mode of interrogation. 2045. Direct and cross-examination defined. 2046. Leading question defined. 2047. When witness may refresh memory from notes. 2048. Cross-examination, as to what. 2049. Party producing not allowed to lead witness. 2050. Witness, how examined. When reëxamined. 2052. Same. Order of proof, how SECTION 2053. Evidence of good character, when allowed. 2054. Writing shown to witness may be inspected by adverse party. 2042. The order of proof must be regulated by regulated. the sound discretion of the Court. Ordinarily, the party beginning the case must exhaust his evidence before the other party begins. Witnesses not under Court may control mode of interrogation. Direct and cross-ex defined. NOTE.-Priest vs. Union Canal Co., 6 Cal., p. 190; Gordon vs. Searing, 8 Cal., p. 49; Lisman vs. Early, 15 Cal., p. 199; Pinkham & McDonough vs. McFarland & Elrod, 5 Cal., p. 137; Kohler vs. Wells, Fargo & Co., 26 Cal., p. 606: Doll vs. Anderson, 27 Cal., p. 248; Ahrens vs. Adler, 33 Cal., p. 608; Lick vs. Diaz, 37 Cal., p. 438; see Secs. 2045 and 2050, ante. 2043. If either party requires it, the Judge may exclude from the Court room any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of other witnesses. 2044. The Court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the witness, and as effective for the extraction of the truth, as may be; but subject to this rule, the parties may put such pertinent and legal questions as they see fit. The Court, however, may stop the production of further evidence upon any particular point when the evidence. upon it is already so full as to preclude reasonable doubt. NOTE.-See Secs. 2065 and 2066, post. 2045. The examination of a witness by the party amination producing him is denominated the direct examination; the examination of the same witness, upon the same matter, by the adverse party, the cross-examination. The direct examination must be completed before the cross-examination begins, unless the Court otherwise direct. NOTE.-See Sec. 2042. question 2046. A question which suggests to the witness Leading the answer which the examining party desires, is defined. denominated a leading or suggestive question. On a direct examination, leading questions are not allowed, except in the sound discretion of the Court, under special circumstances, making it appear that the interests of justice require it. witness refresh 2047. A witness is allowed to refresh his memory When respecting a fact, by anything written by himself, or may under his direction, at the time when the fact oc- from notes. curred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution. amination, 2048. The opposite party may cross-examine the Cross-ex witness as to any facts stated in his direct examination as to what. or connected therewith, and in so doing may put leading questions, but if he examine him as to other matters, such examination is to be subject to the same rules as a direct examination. NOTE.-Landsberger vs. Gorham, 5 Cal., p. 450; Aitken et al. vs. Mendenhall, 25 Cal., p. 212; People vs. Miller, 33 Cal., p. 99; Harper vs. Lamping, 33 Cal., p. 641; Thornton vs. Hook, 36 Cal., p. 223; Jackson vs. Feather River W. Co., 14 Cal., p. 18. producing to lead 2049. The party producing a witness is not allowed Party to impeach his credit by evidence of bad character, not allowed but he may contradict him by other evidence, and witness. may also show that he has made at other times state Witness, how examined. When reexamined. How impeached. Same. ments inconsistent with his present testimony, as provided in Section 2052. NOTE.-Norwood vs. Kenfield, 30 Cal., p. 394. 2050. A witness once examined cannot be reëxamined as to the same matter without leave of the Court, but he may be reëxamined as to any new matter upon which he has been examined by the adverse party. And after the examinations on both sides are once concluded, the witness cannot be recalled without leave of the Court. Leave is granted or withheld, in the exercise of a sound discretion. NOTE.-See Sec. 2042, ante. 2051. A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony. NOTE.-See Secs. 1847, 1879, ante; Stevens vs. Irwin, 12 Cal., p. 306; People vs. Yslas, 27 Cal. p. 630; People vs. Melvane, 39 Cal., p. 614; People vs. McDonald, 39 Cal., p. 697. 2052. A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. NOTE.-See Sec. 1847, ante; McDaniel vs. Baca, 2 Cal., p. 326; Baker vs. Josephs, 16 Cal., p. 173; Payne & Dewey vs. Treadwell, 16 Cal., p. 222; Fox vs. Fox, 25 Cal., p. 587; Rice vs. Cunningham, 29 Cal., p. 492. of good when 2053. Evidence of the good character of a party Evidence is not admissible in a civil action, nor of a witness in character, any action, until the character of such party or witness allowed. has been impeached, or unless the issue involves his character. NOTE.-McMinn vs. Whelan, 27 Cal., p. 300. shown to may be 2054. Whenever a writing is shown to a witness, Writing it may be inspected by the opposite party, and if proved witness by the witness must be read to the jury before his tes-inted timony is closed, or it cannot be read except on recall- party. ing the witness. by adverse TITLE IV. OF THE EFFECT OF EVIDENCE. SECTION 2061. Jury judges of effect of evidence, but to be instructed on certain points. Jury judges evidence, but to be of effect of structed 2061. The jury, subject to the control of the Court, in the cases specified in this Code, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive. They points. are, however, to be instructed by the Court on all proper occasions: 1. That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence; 2. That they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds; 3. That a witness false in one part of his testimony is to be distrusted in others; 4. That the testimony of an accomplice ought to be 58-VOL. II. on certain |