Legislation § 1356. Enacted February 14, 1872 (N. Y. Cole Crim. Proc., § 649); in substance the same as Crim. Prac. Act, Stats. 1851, p. 276, § 574.

§ 1357. Execution of commission to take testimony. The commissioner, unless otherwise specially directed, may execute the commission as follows:

First. He must publicly administer an oath to the witness that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth.

Second. He must cause the examination of the witness to be reduced to writing and subscribed by him.

Third. He must write the answers of the witness as near as possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it until it conforms to what he declares is the truth.

Fourth. If the witness decline answering a question, that fact, with the reason assigned by him for declining, must be stated.

Fifth. If any papers or documents are produced before him and proved by the witness, they, or copies of them, must be annexed to the deposition subscribed by the witness and certified by the commissioner.

Sixth. The commissioner must subscribe his name to each sheet of the deposition, and annex the deposition, with the papers and documents proved by the witness, or copies thereof, to the commission, and must close it up under seal, and address it as directed by the indorsement thereon.

Seventh. If there be a direction on the commission to return it by mail, the commissioner must immediately deposit it in the nearest post-office. If any other direction be made. by the written consent of the parties, or by the court or judge, on the commission, as to its return, the commissioner must comply with the direction.

A copy of this section must be annexed to the commission. [Amendment approved 1874; Code Amdts. 1873-74. p. 451.]

Legislation § 1357. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 650, 651); in substance the same as Crim. Prac. Act, Stats. 1851, p. 276, §§ 575, 576.

2. Amended by Code Amdts. 1873-74, p. 451, (1) in subd. 1, adding "and subscribed by him" at end of subdivision; (2) in subd. 4. changing "declines" to "decline"; (3) in subd. 5, adding "or copies of them" before "must be annexed"; (4) in subd. 6, adding "or copies thereof" before "to the commission"; (5) in subd. 7, changing (a) "is" to "be" after "If there" and after "other direction," and (b) "he" to "the commissioner."

§ 1358. Commission how returned when delivered to an agent for that purpose. If the commission and return be

delivered by the commissioner to an agent, he must deliver the same to the clerk to whom it is directed, or to the judge of the court in which the action is pending, by whom it may be received and opened, upon the agent making affidavit that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it. [Amendment approved 1880; Code Amdts. 1880, p. 28.]

Legislation § 1358. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 652); in substance the same as Crim. Prac. Act, Stats. 1851, p. 276, § 577.

2. Amended by Code Amdts. 1880, p. 28, substituting (1) “be” for "is" before "delivered," and (2) "action" for "indictment."

§ 1359. Same. If the agent is dead, or from sickness or other casualty unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent; that the agent is dead, or from sickness or other casualty unable to deliver it; that it has not been opened or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hands of the commissioner.

Legislation § 1359. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 653); in substance the same as Crim. Prac. Act, Stats. 1851, p. 276, § 578.

§ 1360. When and how filed. The clerk or judge receiv ing and opening the commission and return must immediately file it, with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending. If the commission and return is transmitted by mail, the clerk to whom it is addressed must receive it from the post-office, and open and file it in his office, where it must remain, unless otherwise directed by the court or judge.

Legislation § 1360. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 654, 655); based on Crim. Prac. Act, Stats. 1851, p. 276, §§ 579, 580, the latter section not having the words "by the court or judge."

§ 1361. Commission and return to be open for inspection. Copies, etc. The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same or of any part thereof, on payment of his fees.

Legislation § 1361. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 656); in substance the same as Crim. Prac. Act, Stats. 1851, p. 277, § 581.

§ 1362. Depositions to be read in evidence. Objections thereto. 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 a question in the interrogatories or to an answer in the deposition, as if the witness had been examined orally in court.

Legislation § 1362. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 657); in substance the same as Crim. Prac. Act, Stats. 1851, p. 277, § 582.

CHAPTER VI.

Inquiry into the Insanity of the Defendant Before Trial or After Conviction.

§ 1367. An insane person cannot be tried, sentenced, or punished for a public offense.

$1368. Doubt as to sanity of defendant. Examination of, before jury. Stay of proceedings.

§ 1369.

§ 1370.

§ 1371.

§ 1372.

Order of the trial of the question of insanity. Charge of the court.

Verdict of the jury as to sanity, and proceedings thereon. If defendant is committed, it exonerates his bail, etc. Defendant detained in hospital until he becomes sane. § 1373. Expenses of sending, etc., defendant to hospital, a charge against county.

§ 1367. An insane person cannot be tried, sentenced, or punished for a public offense. A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane.

Acquittal on the ground of insanity: Ante, § 1167.
Criminal liability of insane persons: See ante, § 26.

Legislation § 1367. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 277, § 583, which read: "§ 583. An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense, while he is insane." The code commissioners say: "The words 'An act done by a person in a state of insanity cannot be punished as a public offense,' which were in the original section, are omitted. They prescribed a rule by which responsibility was to be measured, and not a rule of criminal procedure, and for that reason are in substance incorporated in the first part of this code."

§ 1368. Doubt as to sanity of defendant. Examination of, before jury. Stay of proceedings. If at any time during the pendency of an action up to and including the time when defendant is brought up for judgment on conviction a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be submitted

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to a jury; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained. according to the discretion of the court, during the pendency of the issue of insanity. [Amendment approved 1905; Stats. 1905, p. 222.1

Insanity as a defense generally: Ante, § 26.

Order of trial: Post, § 1369.

Acquittal on the ground of insanity: See ante, § 1167.

Legislation § 1368. 1. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 277, §§ 584, 585, which read: “§ 584. When an indictment is called for trial, or upon conviction, the defendant is brought up for judgment, if a doubt shall arise as to the sanity of the defendant, the court shall order the question to be submitted to the regular jury, or may order a jury to be summoned as prescribed in section three hundred and forty-one, to inquire into the fact. §585. The trial of the indictment or the pronouncing of the judgment, as the case may be, shall be suspended until the question of insanity shall be determined by the verdict of the jury." When enacted in 1872, § 1368 read: "1368. When an indictment is called for trial, if a doubt arises as to the sanity of the defendant, the court must order the question to be submitted to a jury; where such doubt arises on the defendant being brought up for judgment on conviction, the court must order a jury to be summoned from the list of jurors selected by the supervisors for the year, to inquire into the fact; and the trial of the indictment or the pronouncing of the judgment must be suspended until the question of insanity is determined by the verdict of the jury."

2. Amended by Code Amdts. 1873-74, p. 452, to read: "1368. When an indictment is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arise as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury; and the trial of the indictment, or the pronouncing of the judgment, must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity."

3. Amended by Code Amdts. 1880, p. 28, (1) changing "When an indictment" to "When an action"; (2) omitting "of the indictment" after "and the trial."

4. Amended by Stats. 1905, p. 222.

§ 1369. Order of the trial of the question of insanity. Charge of the court. The trial of the question of insanity must proceed in the following order:

1. The counsel for the defendant must open the case and offer evidence in support of the allegation of insanity;

2. The counsel for the people may then open their case and offer evidence in support thereof;

3. The parties may then respectively offer rebutting testimony only, unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original

cause;

4. When the evidence is concluded, unless the case is submitted to the jury on either or both sides without argument, the counsel for the people must commence, and the defendant or his counsel may conclude the argument to the jury;

5. If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately. In other cases the argument may be restricted to one counsel on each side;

6. The court must then charge the jury, stating to them all matters of law necessary for their information in giving their verdict.

Legislation § 1369. Enacted February 14, 1872 (based on Crim. Prac. Act, Stats. 1851, p. 277, §§ 586, 587), (1) in subd. 1, changing "shall open" to "must open"; (2) in subd. 2, changing "shall open" to "may then open"; (2) in subd. 5, changing "shall be restricted" to "may be restricted"; (4) in subd. 6, (a) changing "shall then" to "must then," (b) omitting, after “the jury,” the words "if requested by either party," and (e) adding "stating to them all matters of law necessary for their information in giving their verdict," this latter being in substance § 587 of the Practice Act, which read, "§ 587. The provisions of section three hundred and ninety-nine, in respect to the charge of the court to the jury upon the trial of an indictment, shall apply to the question of insanity.” See ante, Legislation § 1127, far § 399.

§ 1370. Verdict of the jury as to sanity, and proceedings thereon. If the jury finds the defendant sane, the trial must proceed, or judgment be pronounced, as the case may be. If the jury finds the defendant insane, the trial or judgment must be suspended until he becomes sane, and the court. must order that he be in the mean time committed by the sheriff to a state hospital for the care and treatment of the insane, and that upon his becoming sane he be redelivered to the sheriff. [Amendment approved 1905; Stats. 1905, p. 704.]

Insane defendant, redelivery to sheriff on discharge from asylum: See Pol. Code, § 2189.

Legislation § 1370. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 659); based on Crim. Prac. Act, Stats. 1851, p. 278, §§ 588, 589, the latter section having "custody of some proper person" instead of "state lunatic asylum," the words of the original code section. When enacted in 1872, § 1370 read: "1370. If the jury find the defendant sane, the trial of the indictment must proceed, or judgment may be pronounced, as the case may be. If the jury find the defendant insane, the trial or judgment must be suspended until he becomes sane, and the court, if he deems his discharge dangerous to the public peace or safety, may order that he be in the mean time committed by the sheriff to the state lunatic asylum, and that upon his becoming sane he be redelivered to the sheriff."