Conclusive or unanswerable evidence. CHAPTER VII. CONCLUSIVE OR UNANSWERABLE EVIDENCE. SECTION 1978. Conclusive or unanswerable evidence. 1978. No evidence is by law made conclusive or unanswerable, unless so declared by this Code. TITLE III. OF THE PRODUCTION OF EVIDENCE. CHAPTER I. By whom to be produced. III. Manner of production. Evidence to be produced by whom. Writing altered, who to explain. CHAPTER I. BY WHOM TO BE PRODUCED. SECTION 1981. Evidence to be produced by whom. 1981. The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. 1982. The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of f the instrument. If he do that, he may give the writ- CHAPTER II. MEANS OF PRODUCTION. SECTION 1985. Subpoena for witness defined. 1986. Subpoena, how issued. 1987. Subpoena, how served. 1988. How, if witness be concealed. 1989. When a witness is compelled to attend. 1990. Person present compelled to testify. 1991. Disobedience, how punished. 1992. Forfeiture therefor. 1993. Warrant may issue to bring witness, when. 1995. If witness be a prisoner, how brought. 1996. On whose motion. 1997. How examined. for witness 1985. The process by which the attendance of a Subpoena witness is required is a subpoena. It is a writ or order defined. directed to a person and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence. how issued. 1986. (§ 403.) The subpoena is issued as follows: Subpoena, 1. To require attendance before a Court, or at the trial of an issue therein, it is issued under the seal of the Court before which the attendance is required, or in which the issue is pending; 2. To require attendance out of the Court, before a Judge, Justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this State, it is issued by the Judge, Justice, or any other officer before whom the attendance is required; Same. Subpoena, how served. How, if witness be 3. To require attendance before a Commissioner appointed to take testimony by a Court of a foreign country, or of the United States, or of any other State in the United States, or of any other district or county within this State, or before any officer or officers empowered by the laws of the United States to take testimony, it may be issued by any Judge or Justice of the Peace in places within their respective jurisdiction, with like power to enforce attendance; and, upon certificate of contumacy to said Court, to punish contempt of their process, as such Judge or Justice could exercise if the subpoena directed the attendance of the witness before their Courts in a matter pending therein. 1987. (§ 404.) The service of a subpoena is made by showing the original and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person. 1988. (§ 405.) If a witness is concealed in a concealed. building or vessel, so as to prevent the service of a subpœna upon him, any Court or Judge, or any officer issuing the subpœna, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the Sheriff of the county serve the subpœna; and the Sheriff must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed. When a witness is compelled to attend. 1989. (§ 402.) A witness is not obliged to attend as a witness before any Court, Judge, Justice, or any other officer, out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial. present to testify. 1990. (§ 406.) A person present in Court, or Person before a judicial officer, may be required to testify in compelled the same manner as if he were in attendance upon a subpoena issued by such Court or officer. dience, how 1991. (§ 409.) Disobedience to a subpoena, or a Disobe refusal to be sworn, or to answer as a witness, or to punished. subscribe an affidavit or deposition when required, may be punished as a contempt by the Court or officer issuing the subpoena or requiring the witness to be sworn; and if the witness be a party, his complaint or answer may be stricken out. therefor. 1992. (§ 410.) A witness disobeying a subpoena Forfeiture also forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. may issue witness, 1993. (§ 411.) In case of failure of a witness to Warrant attend, the Court or officer issuing the subpoena, upon to bring proof of the service thereof, and of the failure of the when. witness, may issue a warrant to the Sheriff of the county to arrest the witness and bring him before the Court or officer where his attendance was required. warrant. 1994. Every warrant of commitment, issued by a Contents of Court or officer pursuant to this Chapter, must specify therein, particularly, the cause of the commitment, and if it be for refusing to answer a question, such question must be stated in the warrant. And every warrant to arrest or commit a witness, pursuant to this Chapter, must be directed to the Sheriff of the county where the witness may be, and must be executed by him in the same manner as process issued by the District Court. 1995. (§ 412.) If the witness be a prisoner, confined in a jail or prison within this State, an order for his examination in the prison upon deposition, or for his temporary removal and production before a Court or officer for the purpose of being orally examined, may be made as follows: 1. By the Court itself in which the action or special proceeding is pending, unless it be a Justice's Court; 2. By a Justice of the Supreme Court, Judge of the District Court, or County Judge of the county where the action or proceeding is pending, if pending before a Justice's Court or before a Judge or other person out of Court. 1996. (§ 413.) Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. 1997. (§ 414.) If the witness be imprisoned in the county where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon deposition. CHAPTER III. MANNER OF PRODUCTION. ARTICLE I. MODE OF TAKING THE TESTIMONY OF WITNESSES. II. AFFIDAVITS. III. DEPOSITIONS. IV. MANNER OF TAKING DEPOSITIONS OUT OF THE STATE. V. MANNER OF TAKING DEPOSITIONS IN THE STATE. VI. GENERAL RULES OF EXAMINATION. |