tion, to made. 1338. (§ 567.) The application may be made to Applicathe Court during the term thereof, or to the Judge in whom vacation, and must be upon three days notice to the District Attorney. when granted 1339. (§§ 568, 569.) If the Court or Judge is sat- Order, isfied that the examination of the witness is necessary, and what an order must be made that the witness be examined to contain. conditionally, at a specified time and place, and that a copy of the order be served on the District Attorney, within a specified time before that fixed for the examination. On proof of service, Attorney be absent, examination must 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 proceed. no counsel appear on the part of the people, the examination must proceed. 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. NOTE.-N. Y. Cr. Pr., Sec. 691. which If facts on order was disproved, proceed. founded be examination not to of witness, 1342. The attendance of the witness may be en- Attendance forced by a subpoena, issued by the magistrate before whom the examination is to be taken. NOTE.-N. Y. Cr. Pr., Sec. 697. 1343. 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. NOTE.-N. Y. Cr. Pr., Sec. 692. how enforced. Testimony, and au how taken thenticated Deposition to be transmitted to Clerk. When may be read in evidence. 1344. 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. 1345. ($582.) 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. Subject to Upon reading 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, etc. NOTE.-See note at the end of succeeding Chapter. CHAPTER V. EXAMINATION OF WITNESSES ON COMMISSION. SECTION 1349. Witness residing out of the State, when to be exam ined. 1350. When defendant may apply for an order to examine, etc. 1351. Commission defined. 1352. Application made on affidavit. 1353. Application, to whom made. 1354. Order for commission, when granted, and stay of pro ceedings. 1355. Interrogations, how settled and allowed. 1356. Direction as to the return of the commission. 1357. Commission, how executed. Copy of this section to be annexed to commission. 1358. Commission, how returned, when delivered to an agent for that purpose. 1359. Same. 1300. When and how filed. 1361. Commission and return to be open for inspection. Copies, etc. 1362. Depositions to be read in evidence. Objections thereto, etc. residing out of the when to be State, 1349. When an issue of fact is joined upon an Witness 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. NOTE.-N. Y. Cr. Pr., Sec. 699. 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 commis sion. NOTE.-N. Y. Cr. Pr., Sec. 700. sion defined 1351. (§ 564.) A commission is a process issued Commisunder 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. 1352. (§ 566.) The application must be made Applicaupon 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. (§ 567.) 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. 1354. (§§ 568, 569.) If the Court or Judge 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 or Judge may insert in the order tion made on affidavit Applica whom tion, to Order for sion, when and stay of commis granted, proceedings. いい Interroga- allowed. a direction that the trial of the indictment be stayed for a specified time, reasonably sufficient for the execution and return of the commission. 1355. (§§ 570, 571, 572, 573.) When the commissettled and sion 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 crossinterrogatories, 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. Direction Commis sion. how executed. 1356. (§ 574.) 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. (§§ 575, 576.) 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; 3. He must write the answers of the witness as near Same. 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 declines 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 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, to the commission, and must close it up under seal, and address it as directed by the indorsement thereon; 7. If there is 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 is made by the written consent of the parties, or by the Court or Judge, on the commission, as to its return, he must comply with the direction. A copy mission. of this section must be annexed to the com 1358. (§ 577.) If the commission and return delivered by the Commissioner to an agent, he must deliver the same to the Clerk to whom it is directed, Copy of this section to be annexed to commission. is Commisreturned. arent for sion, how or to the Judge of the Court in which the indictment 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. when delivered to an that purpose. 1359. (§ 578.) If the agent is dead, or from sick- Samo. ness or other casualty unable personally to deliver the |