CHAPTER II. Compelling the Attendance of Witnesses. Sec. 607. Subpoena, defined. 608. Magistrate may issue subpoenas, on information or presentment. jury. 610. He may also issue subpoenas, for the people, on trial of an in dictment. 611. Clerk may issue blank subpoenas, for witnesses for defendant, on trial. 612. Form of subpoena. 613. Requirement in subpoena, to produce books, papers and documents. 614. Subpoena, by whom served. 615. How served. 616. Fees of witnesses in behalf of people. 617. Fees of defendant's witnesses. 618. Witnesses residing or served with subpoena, out of the county, when and how compelled to attend. 619. Disobedience to subpoena, or refusal to be sworn or to testify, how punished. § 607. Subpoena, defined. The process by which the attendance of a witness, before a court or magistrate is required, is a subpoena. § 608. Magistrate may issue subpoenas, on information or presentment. A magistrate, before whom an information is laid, may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the people or of the defendant. People ex rel. Fleming v. Mayer, 41 Misc. 289. § 609. District attorney may issue subpoenas for witnesses before grand jury. The district attorney of the county may issue subpoenas, subscribed by him, for witnesses within the state, in support of the prosecution or for such other witnesses as the grand jury may direct, to appear before the grand jury, upon an investig tion pending before them. See People ex rel. Larkin v. Hull, 23 Misc. 63. § 610. He may also issue subpoenas for the people, on trial of an indictment. The district attorney may, in like manner, issue subpoenas subscribed by him, for witnesses within the state, in support of an indictment, to appear before the court at which it is to be tried. People v. Sherwin, 100 N. Y. 351. § 611. Clerk may issue blank subpoenas, for witnesses for defendant, on trial. The clerk of the court at which an indictment is to be tried, most. at all times, upon the application of the defendant, and without charge, issue as many blank subpoenas, under the seal of the court and subscribed by him as clerk, for witnesses within the state, as may be required by the defendant. § 612. Form of subpoena. A subpoena, authorized by the last four sections, must be substantially in the following form: "In the name of the people of the state of New York: "To A., B. county of of "You are commanded to appear before C. D., a justice of the peace of the town of [or "the grand jury of the or "the county court of the county or as the case may be,] at [naming the place], on [stating the day and hour], as a witness in a criminal action prosecuted by the people of the state of New York, against E. F. 'Dated at the town of [or as the case may be], 46 ..... "G. H., justice of the peace," [or "I. K., district attorney,” or "By order of the court, L. M., clerk," as the case may be]. Am'd L. 1995, ch. 880. Void subpoena. People ex rel. Livingston v. Wyatt, 186 N. Y. 383. § 613. Requirement in subpoena to produce chattels, books, papers and documents. If chattels, books, papers or documents be required, a direction to the following effect must be contained in the subpoena: “And you are required also to bring with you the following," (describing intelligibly the chattels, books, papers or documents required). Am'd L. 1897, ch. 547. People ex rel. Webster v. Van Tassel, 64 Hun, 444; 46 N. Y. St. Rep. 575, affd., 135 N. Y. 638. § 614. Subpoena, by whom served. A peace officer must serve, in his county, city, town or village, as the case may be, any subpoena delivered to him for service, either on the part of the people or of the defendant; and must make a written return of the service, subscribed by him, stating the time and place of service, without delay. A subpoena may, however, be served by any other person. People ex rel. Flood v. Gardiner, 157 N. Y. 520. § 615. How served. A subpoena is served, by delivering it, or by showing it, and delivering a copy thereof, to the witness personally. § 616. Fees of witnesses in behalf of the people. A witness in behalf of the people in a criminal action in a court of record is entitled to the same fees and mileage as a witness in a civil action in the same court, payable by the treasurer of the county upon the certificate of the clerk of the court, stating the number of days the witness actually attended and the number of miles traveled by him in order to attend. Such certificates shall only be issued by the clerk upon the production of the affidavit of the witness, stating that he attended as such either on subpoena or request of the district attorney, the number of miles necessarily traveled and the duration of attendance. An officer in any state department who attends as a witness under this section in his official capacity, or in consequence of any official action taken by him, and who receives a fixed sum in lieu of expenses, or who is entitled to receive the actual expenses incurred by him in the discharge of his official duties, is not entitled to the compensation herein provided. Ani'd L. 1899, ch. 98. See §§ 394, ante, and 731, post. People ex rel. Troy v. Petitt, 19 Misc. 280; People ex rel. Larkin v. Hull, 23 Misc. 63. § 617. Fees of defendant's witnesses. In any such action, the court may also, in its discretion, by order, direct the county treasurer to pay a reasonable sum, to be specified in the order, to any witness attending in behalf of the defendant, not exceeding the amount payable to a witness in a civil action in the same court. Upon the production of the order or a certified copy thereof, the county treasurer must pay the witness the sum specified therein, out of the county treasury. Am'd L. 1895, ch. 98. § 618. Witnesses residing or served with subpoena, out of the county, when and how compelled to attend. A person served with a subpoena, issued by any officer of any court of record of this state, a district attorney or a county clerk, must attend in obedience to the subpoena, at the time and place and before the court therein named, within any county of this state. No person is obliged to attend as a witness upon a subpoena, issued by any person or court other than a judge of a court of record, a court of record, a district attorney, or a county clerk, out of the county where the witness resides or is served with the subpoena, unless the county judge of the county where such subpoena is returnable, a justice of the supreme court, or a court of record, upon an affidavit of the prosecutor or district attorney, or of the defendant or his counsel, stating that he believes that the evidence of the witness is material, and his attendance at the trial or examination necessary, shall indorse on the subpoena an order for the attendance of the witness. Am'd L. 1895, ch. 794. 64, ante, and 618b, post. § 618a. Subpœna of witnesses to testify in criminal actions without the state. If a judge of a court of record in any state bordering on this state which by its laws has heretofore made provision for commanding persons within its borders to attend and testify in criminal actions in this state, certifies under the seal of such court that there is a criminal action pending in such court, wherein the defendant is charged with a crime of the grade of a felony, and that a person residing or being within this state is believed to be a material and necessary witness in such action, a judge of a court of record in this state, upon the presentation of such certificate and such proof of the materiality and necessity of such witness as he may require, opportunity being given such witness to appear before such judge and be heard in opposition thereto, and upon request so to do by the clerk of the court issuing such certificate, shall issue and attach to such certificate a subpoena commanding such witness to appear and testify in the court where such criminal action is pending at the time and place to be stated therein. If any person on whom such subpoena has been served in the manner provided by this chapter, having been tendered by the party asking for the subpoena the sum of ten cents for each mile to be traveled to and from such court, and the sum of five dollars for each day that his attendance is required, the number of days to be specified in the subpoena, shall unreasonably neglect to attend and testify at such court, he shall be punished in the manner provided for the punishment of disobedience of any other subpoena issued from a clerk of a court of record in this state, provided, however, that the laws of the state in which the trial is to be held gives to persons coming in the state under such subpoena, protection from the service of papers and arrest. Added by L. 1902, ch. 94. In effect Mch. 6, 1902. § 618b. Judge may order witness to enter into an undertaking for appearance or be committed on refusal to comply therewith. Whenever a judge of a court of record in this state is satisfied, by proof on oath, that a person residing or being in this state is a necessary and material witness for the people in a criminal action or proceeding pending in any of the courts of this state, he may, after an opportunity has been given to such person to appear before such judge and be heard in opposition thereto, order such person to enter into a written undertaking, with such sureties and in such sum as he may deem proper, to the effect that he will appear and testify at the court in which such action or proceeding may be heard or tried, and upon his neglect or refusal to comply with the order for that purpose, the judge must commit him to such place, other than a state prison, as he may deem proper, until he comply or be legally discharged. Added by L. 1904, ch. 437. 619. Disobedience to subpœna, or refusal to be sworn or to testify, how punished. Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the court or magistrate, as for a criminal contempt in the manner provided in the Code of Civil Procedure. See 634, 635, 729, 775, 776, post; Code Civ. Pro., §§ 14, 853, 855 and 856; Penal Code, § 143. What is criminal contempt. People ex rel. Munsell v. Oyer and Terminer, Excuses of witness from attending. People v. Davis, 15 Wend. 602. Place of indictment for failure to appear. People ex rel. Sherwin v. Mead, 92 N. Y. 415. Refusal to testify. People v. Hackley, 24 N. Y. 74; People ex rel. Phelps v. Fancher, 2 Hun, 226; People ex rel. McDonald v. Keeler, 99 N. Y. 463; People v. Sharp, 107 N. Y. 427; People ex rel. Jones v. Davidson, 35 Hun, 471. See People ex rel Webster v Van Tessel 64 Hun. 444: 46 N. Y. St. Rep. CHAPTER III. Examination of Witnesses, Conditionally. Sec. 620. Witnesses to be examined conditionally, for the defendant vided in this chapter. 621. In what cases defendant may apply for order. 622. Application, on what facts to be founded. 623. If during term, to be made to the court. 624. If not during term, to whom to be made. 625. The order, when granted and what to contain. as pro 626. If made by the court, may direct examination before a judge or magistrate. If made by a judge, examination to be before him. 627. On proof of service, if district attorney absent, examination to proceed. 628. If facts on which order was founded, be disproved, examination not to proceed. 629. Testimony, how taken and authenticated. 630. Disposition, how, by whom and when filed. 631. When it may be read in evidence. 632. When to be excluded. 633. On reading the deposition, on trial, what objections may be taken. 634. Attendance of witness for examination, hov. compelled. 635. Disobedience of witness, how punished. § 620. Witnesses to be examined conditionally, for the defendant as provided in this chapter. When a defendant has been held to answer a charge of a crime, he may, either before or after indictment, have witnesses examined conditionally on his behalf, as prescribed in this chapter, and not otherwise. Failure to object to reception of deposition. People v. Guidici, 100 N. Y. 503; 3 N. Y. Cr. Rep. 551. Jurisdiction of New York Special Sessions. § 64, ante. § 621. In what cases defendant may apply for order. When a material witness for the defendant is about to leave the state, or is so sick or infirm, as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally. See Code Civ. Pro., §§ 871 and 872. § 622. Application, on what facts to be founded. The application must be made upon affidavit, showing: 1. The nature of the crime charged; 2. The state of the proceedings in the action; 3. The name and residence of the witness, and that his testi mony is material to the defense of the action; and, 4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial. § 623. If during term, to be made to the court. The application, if made during the term, must be made to the court. |