Imágenes de páginas
PDF
EPUB

day of eighteen

dollars,

"An order having been made on the hundred and , by the court of [naming the court], that A. B. be admitted to bail in the sum of in an action pending in that court against him in behalf of the people of the state of New York, upon an [information, presentment, indictment or appeal, as the case may be].

"We, A. B., defendant, [if the defendant join in the undertaking], and C. D., surety of [stating his place of residence and occupation], and E. F., surety of [stating his place of residence and occupation], hereby, jointly and severally, undertake that the above-named A. B. shall appear in that or any other court in which his appearance may be lawfully required, upon that [information, presentment, indictment or appeal, as the case may bel, and shall at all times render himself amenable to its orders and process, and appear for judgment and surrender himself in execution thereof; or if he fail to perform either of these conditions, that we will pay to the people of the state of New York dollars" [inserting the sum in which the

the sum of

defendant is admitted to bail].

§ 606. Qualification of bail, and how put in.-The bail must possess the qualifications, and must be put in, in all respects, in the manner prescribed by sections five hundred and sixty-nine to five hundred and seventy-seven, inclusive.

CHAPTER II.

COMPELLING THE ATTENDANCE OF WITNESSES.

SECTION 607. Subpoena defined.

608. Magistrate may issue subpoenas, on information or presentment. 609. District attorney may issue subpoenas for witnesses before grand

jury.

610. He may also issue subpoenas for the people, on trial of an indict

ment.

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 docu

ments.

614. Subpoena, by whom served.

615. How served.

616. Payment of expenses of witness, when he is from without the

county, or is poor.

617. Payment of expenses of witness, when he is from without the county, or is poor.

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 attend

ance of a witness before a court or magistrate is required is a subpœna.

§ 608. Magistrate may issue subpoenas for witnesses before grand jury.-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.

§ 609. District attorney may issue subpoenas for witnesses before grand jury. The district attorney of the county may issue subpœnas, 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 investigation pending before them.

§ 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.

3 R. S. 6th 3d., 1023, § 66; 2 R. L., 147, § 10.

§ 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, must, 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.

3 R. S. 6th Ed, 1033, § 62; 1 R. L., 497, § 12.

§ 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.

"You are commanded to appear before C. D., a justice of the peace af the town of [or "the grand jury of the county or "the court of sessions of the county of

of

[ocr errors]
[ocr errors]
[ocr errors]

or

[ocr errors]

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

day of

66

[merged small][ocr errors][ocr errors]
[ocr errors]

[as the case may be,] the

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]. § 613. Requirement in subpoena, to produce blanks, papers and documents.If 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 books, papers or documents required.]

§ 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. The subpoena may, however, be served by any other person.

$615. How served.-A subpoena is served by delivering it, or by showing it, and delivering a copy thereof, to the witness personally.

$616. Payment of expenses of witness, when he is from without the court, or is poor.-When a person attends before a magistrate, grand jury or court, as a witness on behalf of the people, upon a subpoena, 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. 3 R. S., 1054, §§ 30, 31, 32, 33.

§ 617. Payment of expenses of witness, when he is from without the county, or is poor.-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 residing or served with subpoena, 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 indorse on the subpoena an order for the attendance of the witness.

§ 619. Disobedience to subpoena 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.

Code of Civ. Proc. §§ 8-13, 853-963.

(7) Must attend within a reasonable time.-A witness must be allowed a reasonable time to travel, and need not travel on Sunday. (Wilkie v. Chadwick, 13 Wend., 49.)

(6) Need not obey radically defective subpoena.-When subpoena is

radically defective witness cannot be punished. (People v. Dutcher, 3 Abb. [N. S.], 151.)

(c) Disobedience cannot be punished by indictment.-Disobedience of a subpoena is not under our statutes a criminal offense punishable by indictment.-(People v. Sherwin, 100 N. Y., 351.)

(d) Attachment.-Proof of an attachment against a witness failing to answer need not be in writing. (Baker Williams, 12 Barb., 527.)

(e) Sickness in family as an excuse.-Sickness in the family, extreme poverty and inability to attend will excuse. (People v. Davis, 15 Wend., 602.) (f) May be committed to county jail.-Where a witness before a grand jury refuses to answer a proper question, the court may commit him to jail until he does so answer. (People v. Faucher, 2 Hun, 226.)

CHAPTER III.

EXAMINATION OF WITNESSES, CONDITIONALLY.*

SECTION 620. Witnesses to be examined conditionally for the defendant, as provided 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

[blocks in formation]

633. 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, 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.

3 R. S., 1025, § 79; Id., 652, § 1.

§ 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.

(a) Probable absence.-Where it is certain or probable that the personal attendance of the witness cannot be had at the trial, his deposition should be taken. (Green v. Kent, 7 Cow., 59; Wait v. Whitney, Id., 69.

(b) Foreign witness.-When a foreign witness is temporarily present he may be examined. (Wait v. Whitney, 7 Cow., 69.)

(c) Pregnant female.-Held, also, that the evidence of a woman in an advanced state of pregnancy may be so taken. (Clark v. Dibble, 16 Wend., 601.) (d) Infirm witness.-Infirm witness may be so examined at any time after suit is brought. (1 Johns Cas., 103.)

(e) Evidence of continued absence.-What evidence necessary to show continued absence of a witness from state. (Bronner v. Frauenthal, 37 N. Y.,

176.)

(f) Where witness has returned.-A deposition may be read, though the witness returned to the State after the examination, if he was not in the State at the time of the trial. (Markoe v. Aldrich, 1 Abb., 55.)

622. Application, on what fact 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 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.

3 R. S.. 6th Ed., 1025, § 79; Id., 653, § 2.

(a) What affidavit should state. -The affidavit need not state the probable inability of the witness to attend the trial. (Ten Eyck v. Perkins, 2 Wend., 308.) (b) Must be made in good faith.-The application must show that it is made in good faith. (Paton v. Westervelt, 5 How., 399.)

(c) Certainty of non-attendance.-Where it is probable or certain that a witness cannot attend the trial an application will be granted. (Green v. Kent, 7 Cow., 59; Wait v. Whitney, Id., 69.)

(d) Drift of the evidence.--An affidavit for such an order must show the subject on which the witness is to depose, and the bearing of the facts. (Dauchy v. Miller, 16 Abb. [N. S.], 100.)

(e) Must show materiality of evidence.-Must show facts and circumstances from which the judge can satisfy himself that such witness is material. (Byrne v. Mulligan, 9 J. & Sp., 515.)

Defective affidavit.-A defect of the affidavit cannot be cured by facts developed on the examination. (Henderson v. Fullerton, 54 How., 422.) § 623. If during term, to be made to the court.-The application, if made during the term, must be made to the court.

§ 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.

§ 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

« AnteriorContinuar »