The separation of the jurors in a civil action, before being instructed and placed in custody of an officer to consider the verdict, is not of itself ground for reversal.100

1204. Evidence adduced. The jury having been sworn to try the case, counsel for plaintiff states briefly the issue and his case, and then introduces his proofs, upon the close of which defendant states the nature of his defense, set-off, or counterclaim, as the case may be, and proceeds with his proofs. Defendant may have the case reopened to introduce evidence in support of issues raised by an amended complaint, filed pursuant to section. 470 of the Code of Civil Procedure.101 The objection as to competency, relevancy, and materiality does not raise the point of hearsay.102 Evidence of an incompetent witness is competent when admitted without objection.103

cases courts

§ 1204a. Matters of judicial notice. In all take judicial notice of certain facts. In California, these are enumerated in the Code of Civil Procedure, and are the following: "1. The true signification of all English words and phrases, and of all legal expressions; 2. Whatever is established by law; 3. Public and private official acts of the legislative, executive, and judicial departments of this state and of the United States; 4. The seals of all the courts of this state and of the United States; 5. The accession to office, and the official signatures and seals of office, of the principal officers of government in the legislative, executive, and judicial departments of this state and of the United States; 6. The existence, title, national flag, and seal of every state or sovereign recognized by the executive power of the United States; 7. The seals of courts of admiralty and maritime jurisdiction, and of notaries public; 8. The laws of nature, the measure of time, and the geographical divisions and political history of the world. In all these cases the court may resort for its aid to appropriate books or documents of reference." 104 The court is to declare such knowledge to the jury, who are bound to accept it.105

100 In re Abel's Estate (Nev.), 93 Pac. 227.

101 Hedstrom v. Union Trust Co., 7 Cal. App. 278, 94 Pac. 386.

102 Dillard v. Olalla Min, Co. (Or.), 94 Pac. 966.

103 Weidenhoft v. Primm, 16 Wyo. 340, 94 Pac. 453.

104 Cal. Code Civ. Proc., § 1875. 105 Cal. Code Civ. Proc., § 2102. For other matters prescribed or defined by the California Code of Civil Procedure,

Matters of which a court takes judicial notice are uniform and fixed, and do not depend upon uncertain testimony.106 They take judicial notice of the true meaning of all legal expressions, including all the terms used in the constitution or in acts of the legislature;107 and, generally speaking, they will take judicial notice of whatever is established by law. 107 The laws of Spain and Mexico which were in force in California prior to its conquest will be judicially noticed.108

§ 1205. Privileged communications-Attorney and client.Confidential communications made by a client to an attorney respecting the business he is employed to transact are privileged, and the attorney cannot be compelled to disclose them; but the matter must be communicated to the attorney professionally and in the usual course of business. But statements made by the client to other persons at the time, or by other persons to him, are not privileged, and the attorney is bound to disclose them the same as any other witness. 10 A client cannot be compelled to disclose communications which his attorney cannot be permitted to disclose.110 However, such privilege may waived. An attorney cannot disclose such matters as a basis for an opinion that a client is of unsound mind, but he may testify as to his general opinion based upon facts not coming to him because his professional advice had been sought.112

111

may be

If, pending the relation of client and attorney, the client communicates to the attorney a fact foreign to the object for which

consult the same, under the titles Evidence; Witnesses; Writings, Public and Private; Estoppels; Presumptions; Rules of Examination; Effect of Evidence; Evidence in Particular Cases; etc. See, also, Grennan v. McGregor, 78 Cal. 258, 20 Pac. 559; Campbell v. West, 86 Cal. 197, 24 Pac. 1000; City of Santa Cruz v. Enright, 95 Cal. 105, 30 Pac. 197.

106 Hunter v. New York etc. R. R. Co., 116 N. Y. 615, 23 N. E. 9, 6 L. R. A. 246; Rogers v. Cady, 104 Cal. 288, 43 Am. St. Rep. 100, 38 Pac. 81.

107 Sheehy v. Shinn, 103 Cal. 325, 37 Pac. 393. See People v. Harrison, 107 Cal. 541, 40 Pac. 956; Power v. Bowdle, 3 N. Dak. 107, 44 Am. St. Rep. 511, 54 N. W. 404, 21 L. R. A.

328; Goodwin v. Scheerer, 106 Cal. 690, 40 Pac. 18.

107а People v. Etting, 99 Cal. 577, 34 Pac. 237.

108 Ohm v. City etc. of San Francisco, 92 Cal. 437, 28 Pac. 580.

109 Gallagher V. Williamson, 23 Cal. 331, 83 Am. Dec. 114; Cal. Code Civ. Proc., § 1181, subd. 2, as amended by act of March 23, 1893; Hager v. Shindler, 29 Cal. 47. See Story's Eq. Pl. 601; Gove v. Harris, 8 Eng. L. & Eq. 149.

110 Verdelli v. Gray's etc. Commercial Co., 115 Cal. 517, 47 Pac. 364.

111 Faylor v. Faylor, 136 Cal. 92, 68 Pac. 482.

112 Sheehan v. Allen, 67 Kan. 712, 74 Pac. 245.

114

the attorney was retained, the communication is not confidential.113 Employment as attorney must have been suggested or anticipated. If, after final judgment, he makes disclosures respecting subjects of the foregone employment, the communications are not privileged. If the attorney receives a deed of the client's property without consideration, and then, at the client's request, deeds the property to another person without consideration, these facts are not privileged communications, and the attorney may be required to disclose them as a witness in a suit. by a creditor to cancel the deeds.115 The rule does not apply if the attorney is acting for both parties.118 The fact of employment is not confidential.117 Where the attorney, when examined as a witness, was unable to state whether an accused person had made certain admissions to him, or whether they were disclosed while the accused was under examination as a witness in his own behalf, the court should have excluded the testimony of its own motion. The accused should have had the benefit of the doubt.18 The privilege applies to the communication, and it is immaterial whether the client is or is not a party to the action in which the question arises, or whether the disclosure is sought from the client or from his legal adviser; and this privilege is not affected by the statutes making parties witnesses.119 A party having given evidence in chief on his own behalf, cannot, on cross-examination, be compelled to divulge statements made by him when consulting as a client an attorney-at-law, such communication being privileged as well when the client is a witness as when the attorney is a witness.120 An attorney's secretary, stenographer, or clerk cannot be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity.121 Where the accused in a criminal trial becomes a witness in his own behalf, he cannot be

113 Hager v. Shindler, 29 Cal. 48. 114 State v. Herbert, 63 Kan. 516, 66 Pac. 235.

115 Hager v. Shindler, 29 Cal. 48. 116 Harris v. Harris, 136 Cal. 379, 69 Pac. 23.

117 Security Loan & Trust Co. v. Estudillo, 134 Cal. 166, 66 Pac. 257; Stanley v. Stanley, 27 Wash. 570, 68 Pac. 187.

118 People v. Atkinson, 40 Cal. 285.

P. P. F. Vol. I-49

119 Montgomery v. Pickering, 116 Mass. 227; Brand v. Brand, 39 How. Pr. 193; Barker v. Kuhn, 38 Iowa, 395,

120 Bigler v. Reyher, 43 Ind. 112; Hemenway v. Smith, 28 Vt. 701; Bobo v. Bryson, 21 Ark. 387, 76 Am. Dec. 406. To the contrary is Inhabitants of Woburn v. Henshaw, 101 Mass. 200, 3 Am. Rep. 333.

121 Cal. Code Civ. Proc., § 1881, subd. 2, as amended by act of March 23, 1893.

compelled on cross-examination to disclose confidential communications between himself and his attorneys."

122

§ 1206. Husband and wife.-A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to an action brought by husband or wife against another for alienation of affections or adultery by either husband or wife.123 And it applies only to confidential communications during coverture, and not to facts obtained from ordinary observations; and a widow can testify as to the condition of her deceased husband when he was intoxicated.124 While the wife cannot testify as to the contents of a letter written to her by defendant, while in jail, the jailor who reads all mail of the prisoners may testify as to the contents thereof.125

126

§ 1207. Physician.-A licensed physician or surgeon cannot, without the consent of his patient, be examined as a witness as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient." The rule as to privileged communications between patient and physician does not apply in criminal cases. 127 A physician practicing in another state, and not authorized to practice under the laws of the state where consulted, is not subject to the restriction.128 Information necessary to enable the physician to prescribe for the patient is privileged, though such physician be sent and

122 Duttenhofer v. State, 34 Ohio St. 91, 32 Am. Rep. 362. As to privilege of professional communications, see Weeks on Attorneys (2d ed.), chap. 8.

123 Cal. Code Civ. Proc., § 1881, subd. 1, as amended 1907. See People v. Mullings, 83 Cal. 138, 17 Am. St. Rep. 223, 23 Pac. 229.

124 In re Van Alstine Estate, 20 Utah, 193, 72 Pac. 942.

125 De Leon v. Territory, 9 Ariz. 161, 80 Pac. 348.

126 Cal. Code Civ. Proc., § 1881, subd. 4. See Wheelock v. Godfrey, 100 Cal. 578, 35 Pac. 317. In re Flint, 100 Cal. 391, 34 Pac. 863; Harris v. Zanone, 93 Cal. 59, 28 Pac. 845; Valensin v. Valensin, 73 Cal. 106, 14 Pac. 397.

127 People v. Lane, 101 Cal. 513, 36 Pac. 16.

128 Woodmen of the World V. Loeher, 17 Colo. App. 247, 68 Pac.

136.

hired by the street-car company responsible for the injury.129 The rule covers only such time as the relationship exists.180

§ 1208. Priest.-A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs. 131

§ 1209. Public officer.-A public officer cannot be examined as a witness as to communications made to him in official confidence, when the public interests would suffer by the disclosure.1 But a judge or any juror may be a witness. 133

132

§ 1210. Witnesses in general.-Where the answer of a witness would tend to subject him to punishment for a felony, he is privileged from answering, on the ground solely that he is not compelled to incriminate himself.134 The only case where a witness is privileged, on the ground that his answer would disgrace him, is when it is not pertinent to the issue.135

§ 1211. Who may be witnesses.-In California, and generally throughout the United States, all persons, with few exceptions, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although, in every case, the credibility of the witness may be drawn in question.136 The following persons cannot be witnesses: 1. Those who are of unsound mind at the time of their production for examination; 2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are

129 Munz v. Salt Lake City R. Co., 25 Utah, 220, 70 Pac. 852; Keast v. Santa Ysabel etc. Co., 136 Cal. 256, 68 Pac. 771.

130 Dubcich v. Grand Lodge, A. O. U. W., 33 Wash. 651, 74 Pac. 832.

131 Cal. Code Civ. Proc., § 1881, subd. 3. See Est. of Toomes, 54 Cal. 509, 35 Am. Rep. 83.

182 Cal. Code Civ. Proc., § 1881, subd. 5.

133 Cal. Code Civ. Proc., § 1883. 134 Ex parte Rowe, 7 Cal. 184. 135 Id. See Cal. Code Civ. Proc., § 2065.

136 Cal Code Civ. Proc., § 1879; Stevens v. Walton, 17 Colo. App. 440, 68 Pac. 834.