CHAPTER V.

EXAMINATION OF WITNESSES ON COMMISSION.

§ 1349. Examination of witness residing out of the State.

§ 1350. When defendant may apply for an order to examine.

§ 1351. Commission defined.

§ 1352. Application made on affidavit.

§ 1353. Application, to whom made.

§ 1354. Order for commission, when granted, stay of proceedings.

§ 1355. Interrogations, how settled and allowed.

§ 1356. Direction as to the return of the commission.

§ 1357. Commission, how executed.

§ 1358. Returned commission, delivered to an agent.

§ 1361. Commission and return, open for inspection. Copies, etc. § 1362. Depositions to be read in evidence. Objections.

1349. When an issue of fact is joined upon an indictment 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. [In effect April 9th, 1880.]

1350. 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.

1351. 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 or interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission.

1352. 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.

1353. The application may be made to the court, or a judge thereof, and must be upon three days' notice to the district attorney. [In effect March 12th, 1880.]

1354. 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. [In effect April 9th, 1880.]

1355. 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 cross-interrogatories 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.

1356. 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.

1357. The commissioner, unless otherwise specially directed, may execute the commission as follows:

1. 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.

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

3. 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.

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

5. 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.

6. 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.

7. 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. [Approved March 30th, in effect July 1st, 1874.]

1358. 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. [In effect April 9th, 1880.]

1359. 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.

1360. The clerk or judge receiving 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.

1361. 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.

1362. 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.

The court may exercise discretion in admitting or rejecting a deposition taken out of the State-50 Me. 409; see 33 Cal. 183; ante, § 1345.

CHAPTER VI.

INQUIRY INTO THE INSANITY OF THE DEFENDANT BEFORE TRIAL OR AFTER CONVICTION.

§ 1367. Insane person cannot be tried, or punished.

§ 1368.

§ 1369.

§ 1370.

Doubts as to sanity of the defendant, how determined. Stay of proceedings on.

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. § 1372. Defendant detained in asylum until he becomes sane. § 1373. Expense of sending, etc., defendant to asylum.

§ 1371.

1367. A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane. Insanity.-A person cannot be tried, adjudged, or punished while insane, for a public offense-31 Cal. 579. The criminal actor must be of sane mind, as an act does not make a man guilty unless his mind is guilty-see Co. Litt. 247 b; 1 Russ. Cr. 9th ed. 6; 1 Hale P. C. 434; 1 Bish. C. L. 6th ed. § 375; and an insane person cannot have any intent -38 Ga. 507. Sanity is an essential ingredient in crime; but mere weakness of mind is not insanity-8 Cal. 370; 24 Ind. 231; 7 Ga. 3; see 40 Ill. 358; 58 Ind. 538. Insanity is a disease which impairs or totally destroys either the understanding, or the will, or both-31 Ind. 492; a controlling disease which cannot be resisted-1 Duval 224; 54 Barb. 274; 3 Ga. 329; 31 Ind. 492; id. 485; 7 Met. 500; 59 Pa. St. 328; 65 id. 347; see 4 Met. (Ky.) 227; sufficient to create an overwhelming iinpulse to do the act-8 Bush, 365; id. 464; 40 Conn. 136; 47 Ga. 553; 31 Ill. 385; id. 485; 25 Iowa, 67; 2 Parker Cr. R. 43; 4 Pa. St. 267; see 7 Law Reporter, 361. A person may be insane in a degree not relieving from responsibility for crime-39 Čal. 690; 1 Cliff. 98; 39 Conn. 591; 13 Abb. Pr. N. S. 207; Edin. Sel. Cas. 126; 1 Curt. 1; 31 Ill. 285; 10 Minn. 223; 57 Me. 574; 50 N. H. 369; 4 Pa. St. 264; 1 Strob. 479. Moral insanity coexisting with mental insanity has no foundation in law, and will not furnish an excuse from punishment for crime-47 Cal. 134; 24 id. 230; 1 Cliff. 98; 39 Conn. 591; 4 Denio, 9; 25 Ga. 507; 45 id. 190; 31 id. 424; 11 Gray, 303; 8 Abb. Pr. N. S. 57; 5 Har. (Del.) 512; 8 Jones (N. C.) 463; 6 McLean, 121; 57 Me. 574; 2 N. Y. 193; 52 id. 467; 2 Ohio St. 54; 48 Mass. 500; Wright, 392; 2 Va. Cas. 132; 1 Zab. 196. Insanity produced by intoxication does not destroy responsibility, if the accused when sane voluntarily made himself drunk-43 Cal. 352; 36 id. 531. See Desty's Crim. Law, §s 23-30; see ante, § 1016.

Test of insanity.-The true inquiry is, whether the defendant was capable of having and did have a criminal intent, and the capacity to distinguish between right and wrong, as to the act charged as a crime -47 Cal. 134; 24 id. 230; 17 Ala. 434; 1 Curt. 1; 3 Heisk. 348; 31 Ill. 385; 30 Miss. 600; 21 Mo. 464; 32 N. Y. 719; 52 id. 467; 10 Ohio St. 598; 23 id. 146; 76 Pa. St. 414; 7 Tex. Ct. App. 163; id. 607; see 34 Iowa, 131; and it is sufficient if shown to have existed in reference to the particular act