TITLE IV. OF THE EFFECT OF EVIDENCE. 2061. Jury judges of effect of evidence, but to be instructed on certain points. § 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 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 viewed with distrust, and the evidence of the oral admissions of a party with caution. 5. That in civil cases the affirmative of the issue must be proved, and when the evidence is contradictory the decision must be made according to the preponderance of evidence; that in criminal cases guilt must be established beyond reasonable doubt. 6. That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce, and of the other to contradict; and, therefore, 7. That if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. Province of jury-questions of fact, sec. 2101: effect of evidence, 30 Cal. 151; 40 Cal. 272; 48 Cal. 80; 51 Cal. 603; 53 Cal. 415, 625; Helbing v. Svea Ins. Co., Feb. 12th, 1880; 4 Pac. C. L. J. 555; Myers v. Spooner, July 8th, 1880, 5 Pac. C. L. J. 612: credibility of witnesses, see last subhead, and 47 Cal. 531. Province of court-compare sec. 608 and notes, sec. 2102. SUBDIVISION 2. Majority of witnesses-not decisive, 38 Cal. 57: most positive testimony may be rejected, 15 Cal. 638: jury are judges of credibility, see under PROVINCE OF JURY, note supra. SUBDIVISION 3. Witness, false in part-to be distrusted in all; willful falsity requisite, 53 Cal. 491: disregarding testimony improper, 30 Cal. 151; 53 Cal. 354. SUBDIVISION 4. Accomplice-distrusting testimony of, etc., see 39 Cal. 614; 53 Cal. 601, 604, corroborating 30 Cal. 316; 39 Cal. 403; 50 Cal. 450. Admissions-see sec. 1870, subd. 2 and note. SUBDIVISION 5. Civil cases-affirmative of issue to be proved, see sec. 1931: preponderance of evidence, 50 Cal. 633. Criminal cases-beyond reasonable doubt, 51 Cal. 372; 52 Cal. 446; 53 Cal. 67: same on justification of truth in slander, 50 Cal. 631. SUBDIVISION 7. Weaker evidence offered-5 Cal. 249; 9 Cal. 430. TITLE V. OF THE RIGHTS AND DUTIES OF WITNESSES. 2064. Witnesses bound to attend when subpoenaed. $2065. Witnesses bound to answer questions. $2066. Right of witnesses to protection. $ 2067. Witnesses protected from arrest when attending, or going or returning. § 2068. Arrest to be made void, and party making arrest liable, etc. § 2069. To make affidavit if arrested. § 2070. Court to discharge witness from arrest. § 2064. A witness, served with a subpoena, must attend at the time appointed, with any papers under his control required by the subpoena, and answer all pertinent and legal questions; and, unless sooner discharged, must remain until the testimony is closed. Subpœna-secs. 1985, 1991. Answering questions-sec. 2065. Witnesses-competency, etc., secs. 1878-1884: examination, impeachment, refreshing memory, etc., secs. 2042-2054. § 2065. A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony. Witness implicating himself-when privileged from answering, 7 Cal. 184; degrading answer, 35 Cal. 89; 39 Cal. 449. § 2066. It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of justice require it; to be examined only as to matters legal and pertinent to the issue. Compare-sec. 2044. Detention of witness-unreasonable, constitutional prohibition of, see Const. Cal. art. 1, sec. 6. § 2067. Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt, is exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there and returning therefrom. Exemption from arrest-but not from obeying ordinary process, 6 Cal. 32. § 2068. The arrest of a witness, contrary to the preceding section, is void, and when willfully made, is a contempt of the court; and the person making it is responsible to the witness arrested for double the amount of the damages which may be assessed against him, and is also liable to an action at the suit of the party serving the witness with a subpoena, for the damages sustained by him in consequence of the arrest. Contempt of court-see secs. 1209-1222. § 2069. An officer is not liable to the party for making the arrest in ignorance of the facts creating the exoneration, but is liable for any subsequent detention of the party, if such party claim the exemption and make an affidavit stating 1. That he has been served with a subpoena to attend as a witness before a court, officer, or other person, specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and, 2. That he has not thus been served by his own procurement, with the intention of avoiding an arrest; 3. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and exonerates him from liability for discharging the witness when arrested. § 2070. The court or officer issuing the subpoena, and the court or officer before whom the attendance is required, may discharge the witness from an arrest made in violation of section two thousand and sixty-seven. If the court have adjourned before the arrest, or before application for the discharge, a judge of the court may grant the discharge. [In effect April 16th, 1880.] |