§ 616. Payment of expenses of witness, when he is from without the county, or is poor. When a person attends before a magistrate, grand jury or court, as a witness on behalf of the people, upon a subpœna, or pursuant to an undertaking, and it appears that he has come from a place out of the county, or that he is poor, the court, if the attendance of the witness be upon a trial, by an order entered upon its minutes, or in any other case, the county judge, or in the city of New York, the recorder or city judge, or judge of the general sessions of that city, by a written order, may direct the county treasurer to pay the witness a reasonable sum, to be specified in the order, for his expenses. See i 394, ante; 731, post. § 617. Id. 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. § 618. Witnesses, etc., out of the county, when and how compelled to attend.- No person is obliged to attend as a witness, before a court or magistrate out of the county where the witness resides or is served with the subpoena, unless the judge of the court in which the crime is triable, or a judge of the supreme court, or a county judge, or in the city of New York, the recorder or city judge, or judge of the general sessions of that city, 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 examination or trial necessary, shall endorse on the subpœna an order for the attendance of the witness. Disobedi § 619. Disobedience to subpoena, etc., how punished. ence 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 Code Civil Proc 8-13, 853-863. Sub. 4, § 143 of Penal Code. Witness is to be allowed a reasonable time to attend. Wilkie v. Chadwick, 13 Wend. 49. Extreme poverty will excuse non attendance. People v. Davis, 15 Wend 602. When subpoena is defective. People Dutcher, 3 Abb. (N. S.) 151. When not. People v. Van Wyck, 2 Cai. 233. A refusal of a witness to answer before grand jury, may be punished as a contempt in court. People v. Kelly, 24 N. Y. 74; People v Fancher, 2 Hun, 226. Proof for an attachment against witness failing to answer need not be in writing. Baker v. Williams, 12 Barb. 527. Legislative Proceedings. People ex rel. Keeler v. McDonald, 99 N. Y. 463. District attorney's subpoena. People v. Sherwin, 100 N. Y. 331; 36 Hun, 280; 4 N. Y. Cr. 75. Refusal to answer. People v. Davidson, 35 Hun, 471. People ex rel. Sherwin v. Mead, 28 Hun, 227; 92 N. Y. 415; 3 N. Y. Cr. 524; People v. Sharp, 45 Hun, 493. CHAPTER III. EXAMINATION OF WITNESSES, CONDITIONALLY. SEC. 620. Witnesses to be examined conditionally, for the defendant as pro 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. 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. Deposition, how, by whom and when filed. 631. When it may be read in evidence. 632. When to be excluded. 683. On reading the deposition, on trial, what objections may be taken. 634. Attendance of witness for examination, how compelled. 635. Disobedience of witness, how punished. § 620. Witnesses to be examined conditionally for the defendant, etc.- 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. People v. Guidici, 100 N. Y. 503; 3 N. Y. Cr. 557; People v. Squire, 4 id. 582. § 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. Wait v. Whit- Foreign witness, temporarily present, may be so examined. ney, 7 Cow. 69. People v. Guídíci, 100 N. Y. 507; 3 N. Y. Cr. 557. § 872 of Code of Civil Procedure. See note in 1 Sil. (S. C.) 2. § 622. Application, on what facts, etc.— 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 testimony 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. See citations under last section. § 623. If during term, to be made to the court.—The application, if made during the term, must be made to the court. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. § 624. If not during term, to whom to be made. If not made during the term, it may be made as follows: 1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions other than in the city of New York, to a judge of the supreme court, or to the county judge; 2. When the indictment is pending in the court of general sessions of the city of New York, to the recorder or city judge or judge of general sessions, or one of the judges of the court of common pleas of that city; 3. When the indictment is pending in a city court, to the recorder or city judge of the city in which it is pending. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. § 625. The order, when granted and what to contain.-- If the court or officer be satisfied that the examination of the witness is necessary to the attainment of justice, an order must be made, that the witness be examined conditionally, at a specified time and place, and that a copy of the order, and of the affidavit on which it was granted, be served on the district attorney, within a specified time before that fixed for the examination. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. § 626. If made by the court, may direct examination before a judge or magistrate, etc. — If the order be made by the court, it may direct that the examination be taken before a judge thereof, or before a magistrate in the county, to be named in the order. If made by any of the officers mentioned in section 624, it must direct the examination to be taken before him. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. On § 627. On proof of service, etc, examination to proceed. proof being furnished to the officer before whom the examination is appointed, of the service upon the district attorney, of a copy of the order, and of the affidavit on which it was granted, if no counsel appear on the part of the people, the examination must proceed. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. § 628. If facts on which order was founded, be disproved, ex. amination, etc. If the district attorney or other counsel appear on the part of the people, and it be shown to the satisfaction of the court or officer, 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 can not take place; otherwise it must proceed. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. § 629. 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, as prescribed in section 200. See section 200, ante. Defective depositions. People v. Restell, 3 Hill, 289; People v. Ward, 4 Park. 516; People v. Chrystal, 8 Barb. 545. Foster v. Bullock, 12 Hun, 200; Sheldon v. Wood, 24 N. Y. 607; 2 Bosw. 267; McDonald v. Garrison, 18 How. 249; 9 Abb. 34; People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. § 630. Deposition, how, by whom and when filed. The deposition must be retained by the officer taking it, and filed by him in the office of the clerk of the court without unnecessary delay. Deposition may be ordered filed nunc pro tunc. Burdell v. Burdell, 1 Duer, 625; Bank of Silver Creek v. Browning, 16 Abb. 272; People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. § 631. When it may be read in evidence. The deposition, or a certified copy thereof, may be read in evidence by either party on 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. Inability must exist at time of trial to entitle deposition to be read. Fry v. Bennett, 4 Duer, 247. See Donnell v. Walsh, 6 Bosw. 621. What is sufficient proof of inability. Bronner v. Frauenthal, 37 N. Y. 166; Markoe v. Aldrich, 1 Abb Pr. 55. Sheldon v. Wood, 24 N. Y. 607; 2 Bosw 267; People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557; Mut. L. I. Co. v. Nat. B. & L. Co. 50 Hun, 105. § 632. When to be excluded. — The deposition can not, however, be read, if it appear that the copy of the order and of the affidavit on which it was founded, was not served on the district attorney, as directed, or that the examination was in any respect unfair or not conducted as prescribed in this chapter. There must be an opportunity to cross-examine. Hewlett v. Wood, 67 N. Y. 394; 7 Hun, 227. If consent given to read deposition, it can not be withdrawn. Beebe v. People, 5 Hill, 32. Starin v. Atlantic Mut. Ins. Co. 63 N. Y. 77; 38 Supr. 281; Elverson v. Vanderpoel, 41 id. 257; People v. Guidicl, 100 N. Y. 507; 3 N. Y. Cr. 557. § 633. On reading deposition, on trial, what objections may be taken. Upon the reading of the deposition in evidence, the same objections may be taken to a question or answer contained therein, as if the witness had been examined orally in court. Objections to the competency of the witness. Ex parte Kip, 1 Pai. 601; People v. Guidici, 100 N. Y. 503; 3 N. Y. Cr. 557. § 634. Attendance of witness for examination, how compelled.— The attendance of the witness may be enforced, by a subpœna subscribed by the officer, or issued under the seal of the court. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557. Disobedience § 635. Disobedience of witness, how punished. to the subpoena, or a refusal to be sworn or to testify, may be punished by the court or officer, as prescribed in section 619. People v. Guidici, 100 N. Y. 507; 3 N. Y. Cr. 557; People ex rel. Munsell v. Court, etc. 101 N. Y. 251; 4 N. Y. Cr. 75; 8 How. (U. S.) 418; People v. Sharp, 45 Hun, 493. CHAPTER IV. EXAMINATION OF WITNESSES ON COMMISSION. SEC. 636. Witness residing out of the state, to be examined for defendant, as provided in this chapter. 637. In what cases defendant may apply for order to examine witnesses on commission. 638. Commission defined. 639. Application for commission, on what facts to be founded. 640. If during term, to be made to the court. 641. If not during term, to whom to be made. 642. Notice of application, when required and how given. 643 Order of commission, when granted 644. Trial to be stayed until execution and return of commission. 645. Interrogatories, and notice of settlement. 646. Cross-interrogatories, and notice of settlement. 647, 648 What may be inserted in interrogatories. 649. Direction as to return of commission. 650. Commission, how executed. 651. Copy of last section to be annexed to commission. 652, 653 Commission, how returned, when delivered to agent for that purpose 654. When and how filed. 655. Commission returned by mail, how disposed of 656. Commission and return to be open for inspection, and copies to be furnished. 657. Deposition to be read in evidence. What objections may be taken thereto. § 636. Witness residing out of the state, etc. — When an issue of fact is joined upon an indictment, the defendant may have any material witness residing out of the state examined in his behalf, as prescribed in this chapter, and not otherwise. These provisions only relate to trials on indictment. People v. Haight, 3 N. Y. Cr. 60; 13 Abb. N. C. 197. - When a § 637. In what cases defendant may apply for, etc. 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. Commissions are statutory proceedings solely, and must be strictly pursned Dwinnelle v. Howland, 1 Abb. Pr. 87; Cleamer v. Jackson, 4 id. 413; McCall Sun Mut. Ins. Co. 50 N. Y. 332; 2 J. & Sp. 310. New commission for examination of same witnesses may issue. Fisher Dale, 17 Johns. 313; Raney . Weed. 1 Barb. 220; or may be ordered re-executed Baker v. Spencer, 47 N. Y. 562. McMonagle v. Conkey, 14 Hun, 326; Rathbun v. Ingersoll, 34 Supr. 211. |