
    PEOPLE v. BOSCOVITCH.
    The circumstance of a witness in a criminal action having remained in Court, and heard the evidence of other witnesses, in disobedience to an order of the Court excluding him from the Court room while other witnesses were under examination, is no ground for rejecting his testimony. The witness, in such case, may be punished for contempt in disobeying the order; but a party cannot, without fault on his part, be deprived, for such disobedience, of the testimony of the witness.
    Appeal from the Court of Sessions of Tuolumne County.
    4
    Indictment for robbery. After the jury were empanneled, on motion of the District Attorney, the defendant’s witnesses were sworn and put under the rule excluding them from the Court room, and from the hearing of the other witnesses. The evidence for the People being closed, defendant called two of his witnesses who had thus been ordered to exclude themselves, and it appearing to the Court that they had violated the order, and had been present in the Court room, and heard a portion of the testimony of other witnesses, on objection of the District Attorney, the Court refused to permit them to testify for defendant, to which ruling exception was taken. The defendant was convicted.
    
      L. Quint, for Appellant.
    The circumstance of a witness having remained in Court, in disobedience to an order, is no ground for rejecting his testimony. (Eng. Com. Law Rep. 627.)
    
      Attorney General, for Respondent, confessed error.
   Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring.

The Attorney General very properly confesses error in the present case. If the witnesses offered disregarded the rule of the Court excluding their presence, until called, during the progress of the trial, the Court might have punished them as for a contempt. The fact constituted no ground for the exclusion of their testimony. The defendant could not enforce the rule, and to deprive him of the benefit of their testimony for its disobedience, without fault on his part, was manifestly unjust and illegal.

Judgment reversed and cause remanded for a new trial.  