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§ 635. Disobedience of witness, how punished. Disobedience 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.

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 for 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, 618. 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 copics to be furnished.

657. Deposition to be read in evidence. What objections may be taken thereto.

§ 636. Foreign witness,

how examined. 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.

§ 637. When defendant may apply for.-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.

Commissions are statutory proceedings solely, and must be strictly pursued. Dwinnelle v. Howland, 1 Abb. Pr., 87; Creamer v. Jackson, 4 id., 413; McColl v. Sun Mut. Ins. Co.,

50 N. Y., 332; 2 J. & Sp., 310. New commissions for examination of same witnesses may issue. Fisher v. Dale, 17 Johns., 343; Raney v. Weed, 1 Barb., 220; or may be ordered reexecuted. Baker v. Spencer, 47 N. Y., 562.

§ 638. Commission defined.-A commission is a process issued under the seal of the court, and the signature of the clerk, directed to one or more persons, designated as commissioners, authorizing them to examine the witness upon oath, on interrogatories annexed thereto, and to take and return the deposition of the witness, according to the directions given, with the commission.

§ 639. Application for commission, on what based. The application must be made upon affidavit, showing:

1. The nature of the crime charged;

2. The state of the proceedings in the action, and that 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.

Sub. 3. Need not state what proof expected. Eaton v. North, 7 Barb., 631; affidavit may be made by agent or attorney, ibid.

§ 640. If during term, to be made to the court.— The application, if made during the term, must be made to the court.

§ 641. If not during term to whom to be made.— If not made during the term, the application may be made as follows:

1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions, except in the city and county 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 in the city and county 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 judge of the court in which it is pending.

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§ 642. Notice of application.-If the application be made to the court, it may be without notice to the district attorney, unless the court direct notice to be given, in which case it must prescribe the manner of giving the same. If made to one of the officers mentioned in the last section, the application must be upon five days' notice to the district attorney, served with a copy of the affidavit upon which it is founded.

§ 643. Order for commission, when granted.— If the court or officer to whom the application is made, be satisfied that the witness resides out of the state, and that his examination is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and that the people be permitted to join in the commission, and to examine witnesses in support of the indictment.

Naming of commissioners. Harris v. Wilson, 2 Wend, 627; Townsend v. N. Y., Ins., Co., 1 Cai., 4. Who may act as such, Lewis v. Van Loon, 3 Cai., 105. Exhibits. Butler v. Lee, 32 Barb., 75.

§ 644. Trial to be stayed until return of commission. If the application for a commission be granted, the court or judge must insert in the order therefor, a direction that the trial of the indictment be stayed for a specified time, reasonably sufficient for the execution and return of the commission.

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When stay should be vacated. Voss v. Fielden, 2 Sand., 690.

§ 645. Interrogatories, and notice of settlement. When the commission is ordered, the defendant must serve upon the district attorney, and the district attorney, if he intend to join in the commission and examine witnesses in support of the indictment, must serve upon the defendant or his counsel, a copy of the interrogatories to be annexed thereto, with a notice of two days of their settlement, before an officer who might have granted the order out of term, as provided in section 641.

§ 646. Cross-interrogatories and notice of settlement. The district attorney, and the defendant,

may, in the same manner, serve cross-interrogatories, to be annexed to the commission, with the like notice of the settlement thereof.

§ 647. What may be inserted in interrogatories.— In the interrogatories, either party may insert any question pertinent to the issue.

See McDonald v. Garrison, 2 Hilt., 510; Blaisdell v. Raymond, 9 Abb. Pr., 178 n.

§ 648. Id. Upon the settlement of the interrogatories, the judge must expunge every question not pertinent to the issue, and modify the questions, so as to conform them to the rules of evidence, and when settled, must indorse upon them his allowance, and annex them to the commission.

§ 649. Direction as to return of commission.Unless the parties otherwise consent, by an indorsement upon the commission, the officer 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 indictment is pending, designating his name and the place where his office is kept.

Unless returned as directed, it cannot be read. Richardson V. Gere, 21 Wend., 156.

§ 650. Commission, how executed.-The commissioners, or any one of them, unless otherwise specially directed, may execute the commission as follows:

1. They 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. They must cause the examination of the witness to be reduced to writing;

3. They must write the answers of the witness, as nearly 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 is made conformable to what he declares is the truth;

4. If the witness decline answering a question, that

fact, with the reason for which he declines answering it, as he gives it, must be stated;

5. If papers or documents are produced before them, and proved by the witness, they must be annexed to his deposition, and be subscribed by the witness, and certified by the commissioners;

6. The commissioners must subscribe their names to each sheet of the deposition, and annex the deposition, with the papers or documents proved by the witness, to the commission, and must close it up under seal, and address it, as directed thereon.

7. If there be a direction on the commission, to return it by mail, the commissioners 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 officer, on the commission, as to its return, they must comply with the direction.

Sub. 1. When witnesses may be sworn by local authorities. Lincoln v. Batelle, 6 Wend., 475. Sub. 3. When foreign language may be used. Leetch v. Atlantic Mut. Ins. Co., 4 Daly, 518. Sub. 4. Refusal to answer material cross-interrogatory, ground for rejecting entire deposition. Smith v. Griffith, 3 Hill, 333. Answer though not full, if not clearly evasive, suficient. See Baker v. Spencer, 47 N. Y., 562; Terry v. McNeil, 58 Barb., 241. Sub. 5 Annexing exhibits. Howard v. Orient Ins. Co., 9 Bos., 645; Woodruff v. Shepherd, 6 Cow., 444. Exhibits, how identified. Brumskill v. James, 11 N. Y., 294. Sub. 7. It is no objection that depositions were not immediately mailed. Halleran v. Field, 23 Wend., 33; See Pendell v. Coon, 20 N. Y., 134.

651. Copy of last section to be annexed to commission.-A copy of the last section must be annexed to the commission.

§652. Commission, how returned by an agent.If the commission and return be delivered by the commissioners to an agent, he must deliver it to the clerk to whom it is directed, or to a judge of the court in which the indictment is pending, by whom it may be received and opened, upon the affidavit of the agent, that he received it from the hands of one of the commissioners, and that it has not been opened or altered since he received it.

Affidavit of agent is indispensable. Dwinelle v. IIowland, 1 Abb. Pr., 87.

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