1 3. Amendment by Stats. 1901, p. 496; unconstitutional. See note, $ 5, ante. 4. Amended by Stats. 1905, p. 703. See ante, Legislation § 1335, for code commissioner's note. § 1339. Order, what to contain. If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and before a magistrate designated therein. [Amendment approved 1905; Stats. 1905, p. 703.] Legislation § 1339. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 625); based on Crim. Prac. Act, Stats. 1851, p. 275, §§ 568, 569, which read: "§ 568. If the court or judge to whom the application is made be satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order shall be made that a commission be issued to take his testimony. $569. If the application for a commission be granted, the court or judge may insert in the order therefor a direction that the trial of the indictment be stayed for a specified time, reasonably sufficient for the execution and return of the commission." 2. Amendment by Stats. 1901, p. 496; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1905, p. 703, at end of section, substituting "and before a magistrate designated therein" for "and that a copy of the order be served on the district attorney, within a specified time before that fixed for the examination." See ante, Legislation § 1335, for code commissioner's note. § 1340. Defendant has right to be present at examination. The defendant has the right to be present in person and with counsel at such examination, and if the defendant is in custody, the officer in whose custody he is, must be informed of the time and place of such examination, and must take the defendant thereto, and keep him in the presence and hearing of the witness during the examination. [Amendment approved 1905; Stats. 1905, p. 703.] Legislation § 1340. 1. Enacted February 14, 1872, and then read: "1340. The order must direct that the examination be taken before a magistrate named therein, and on proof being furnished to such magistrate of service upon the district attorney of a copy of the order, if no counsel appear on the part of the people, the examina tion must proceed." 2. Amendment by Stats. 1901, p. 496; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1905, p. 703. See ante, Legislation § 1335, for code commissioner's note. § 1341. Examination not to proceed, when. If, at the time and place so designated, it is shown to the satisfaction of the magistrate that the witness is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial. the examination cannot take place. [Amendment approved 1905; Stats. 1905, p. 703.] Legislation § 1341. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 628), and then read: "1341. If the district attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the magistrate, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed." 2. Amendment by Stats. 1901, p. 496; unconstitutional. See note, § 5, ante. 3. Amended by Stats. 1905, p. 703. See ante, Legislation § 1335, for code commissioner's note. § 1342. Attendance of witness, how enforced. The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken. Legislation § 1342. Enacted February 14, 1872. (N. Y. Code Crim. Proc., § 634.) § 1343. Testimony, how taken and authenticated. The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information. Legislation § 1343. Crim. Proc., § 629.) Enacted February 14, 1872. (N. Y. Code § 1344. Deposition to be transmitted to clerk. The deposition taken must, by the magistrate, be sealed up and transmitted to the clerk of the court in which the action is pending or may come for trial. Legislation § 1344. Enacted February 14, 1872. § 1345. When may be read in evidence. Subject to ob jections, etc. The deposition, or a certified copy thereof, may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness, or infirmity, or of his continued absence from the state. Upon reading the deposition in evidence, the same objections may be taken to a question or answer contained therein as if the witness has been examined orally in court. Legislation § 1345. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 631); based on Crim. Prac. Act, Stats. 1851, p. 277, § 582, which read: "8582. The depositions taken under the commission may be read in evidence by either party on the trial, upon it being shown that the witness is unable to attend from any cause whatever, and the same objections may be taken to ary question in the interrogatories, or to any answer in the deposition, as if the witness had been examined orally in court." § 1346. Deposition of witnesses who are prisoners in other counties. When a material witness for a defendant, under a criminal charge, is a prisoner in the state prison, or in the county jail of a county other than that in which the defendant is to be tried, his deposition may be taken, on behalf of the defendant, in the manner provided for in the case of a witness who is sick, and the provisions of the Penal Code, commencing with section thirteen hundred and thirty-five and ending with section thirteen hundred and forty-five, shall, so far as applicable, govern in the application for and in the taking and use of such deposition. Such deposition may be taken before any magistrate or notary public of the county in which the jail or prison is situated; or in case the witness is confined in the state prison, and the defendant is unable to pay for taking the deposition, before the warden or clerk of the board of directors of the state prison, whose duty it shall be to act without compensation. Every officer, before whom testimony shall be taken by vir tue hereof, shall have authority to administer, and shall administer an oath to the witness that his testimony shall be the truth, the whole truth, and nothing but the truth. [Amendment approved 1880; Code Amdts. 1880, p. 28.] Legislation § 1346. 1. Added by Code Amdts. 1877-78, p. 123. 2. Amended by Code Amdts. 1880, p. 28, (1) in first sentence, changing "under indictment" to "under a criminal charge"; (2) in second sentence, omitting "deputy warden" after "warden." § 1349. § 1350. § 1351. CHAPTER V. Examination of Witnesses on Commission. Witness residing out of the state, when to be examined. Application made on affidavit. Order of commission, when granted and stay of proceedings. § 1352. $1353. Application to whom made. § 1354. § 1355. § 1356. § 1357. § 1358. § 1359. § 1360. Direction as to the return of the commission. Execution of commission to take testimony. Commission how returned when delivered to an agent for that purpose. Same. When and how filed. § 1361. Commission and return to be open for inspection. Copies, etc. § 1362. Depositions to be read in evidence. Objections thereto. $1349. Witness residing out of the state, when to be examined. When an issue of fact is joined upon an indict ment or information, the defendant may have any material witness, residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise. [Amendment approved 1880; Code Amdts. 1880, p. 28.] Legislation § 1349. 1. Enacted February 14, 1872. (N. Y. Code Crim. Proc., § 636). 2. Amended by Code Amdts. 1880, p. 28, inserting "or information" after "indictment." § 1350. When defendant may apply for an order to examine, etc. When a material witness for the defendant resides out of the state, the defendant may apply for an order that the witness be examined on a commission. Legislation § 1350. Enacted February 14, 1872. (N. Y. Code Crim. Proc., § 637.) § 1351. Commission defined. A commission is a process issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath on interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission. Legislation § 1351. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 638); in substance the same as Crim. Prac. Act, Stats. 1851, p. 275, § 564. § 1352. Application made on affidavit. The application must be made upon affidavit, stating: 1. The nature of the offense charged; 2. The state of the proceedings in the action, and that an issue of fact has been joined therein; 3. The name of the witness, and that his testimony is material to the defense of the action; 4. That the witness resides out of the state. Legislation § 1352. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 639); based on Crim. Prac. Act, Stats. 1851, p. 275, § 566, which read: "§ 566. The application must be made upon affidavit, showing: First, the nature of the offense charged. Second, the state of the proceedings in the action. Third, the name of the witness, and that his testimony is material to the defense of the action. Fourth, that the witness is about to leave the state or is so sick or infirm as to afford reasonable grounds for apprehending that he I will not be able to attend the trial." § 1353. Application to whom made. The application may be made to the court, or a judge thereof, and must be upon three days' notice to the district attorney. [Amendment approved 1880; Code Amdts. 1880, p. 6.] Legislation § 1353. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 642); in the exact language of Crim. Prac. Act, Stats. 1851, p. 275, § 567. When enacted in 1872, § 1353 read: "1353. The application may be made to the court during the term, or to the judge in vacation, and must be upon three days' notice to the district attorney." 2. Amended by Code Amdts. 1880, p. 6. § 1354. Order of commission, when granted and stay of proceedings. If the court to whom the application is made is satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony; and the court may insert in the order a direction that the trial be stayed for a specified time, reasonably sufficient for the execution and return of the commission. [Amendment approved 1880; Code Amdts. 1880, p. 28.] Legislation § 1354. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 643, 644); in substance the same as Crim. Prac. Act, Stats. 1851, p. 275, §§ 568, 569. 2. Amended by Code Amdts. 1880, p. 28, (1) omitting "or judge" after "If the court" and after "and the court"; (2) changing "that the trial of the indictment be stayed" to "that the trial be stayed." § 1355. Interrogations, how settled and allowed. When the commission is ordered, the defendant must serve upon the district attorney, without delay, a copy of the interrogatories to be annexed thereto, with two days' notice of the time at which they will be presented to the court or judge. The district attorney may in like manner serve upon the defendant or his counsel cross-interrogatories, to be annexed to the commission, with the like notice. In the interrogatories either party may insert any questions pertinent to the issue. When the interrogatories and crossinterrogatories are presented to the court or judge, according to the notice given, the court or judge must modify the questions so as to conform them to the rules of evidence, and must indorse upon them his allowance and annex them to the commission. Legislation § 1355. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 645-648); in substance the same as Crim. Prae. Act, Stats. 1851, p. 275, §§ 570-573. § 1356. Direction as to the return of the commission. Unless the parties otherwise consent, by an indorsement upon the commission, the court or judge must indorse thereon a direction as to the manner in which it must be returned, and may, in his discretion, direct that it be returned by mail or otherwise, addressed to the clerk of the court in which the action is pending, designating his name and the place where his office is kept. |