it is issued, and shall be made returnable at any day of the sitting of the court at which the attendance of the witness shall be required.1

§ 68. WITNESSES IN A FOREIGN COUNTY.

Whenever it shall become necessary to send subpœnas into a foreign county for witnesses on criminal process, the district attorney is empowered to send them to the sheriff of the county in which the said witnesses reside, whose duty it shall be to serve the same and make his return without delay to such district attorney.2

§ 69. FEES NOT TO BE TENDERED WITNESS.

It shall not be necessary to pay or tender any fees whatever to any witness subpoenaed on the part of the people of this State in support of any prosecution, or to any witness subpoenaed on the part of any defendant in any indictment; but such witness shall be bound to attend as if the fees, allowed by law to witnesses in civil cases, had been duly paid him.3

§ 70. DISOBEDIENCE OF SUBPŒNA.

Disobedience of every subpoena, issued pursuant to the foregoing provisions, shall be punished in the same manner and upon the like proceedings as provided by law in cases of subpoenas returnable at any circuit court; and the person guilty of such disobedience shall be liable to the party, at whose instance such subpoena issued, in the same manner and to the same extent as in cases of subpoenas issued in any civil suit.^

In case of the failure of the witness to appear and testify in obedience to a subpoena duly served upon him, he is called by the crier of the court as follows:

"A B come forward and testify in this issue, joined between the people of the State of New York and C D, upon an indictment for grand larceny (or other offence), according to the command of a subpoena therein served on you or your default will be entered."

The district attorney thereupon produces proof of due service of the subpoena upon the witness; the clerk enters his default

and an order that an attachment issue. The attachment is signed by the clerk of the court and district attorney, and sealed with the seal of the court. The proceeding upon obtaining an attachment for disobedience to a subpoena requiring the witness to attend and testify before a grand jury is the same,, except that the crier, in calling the witness, calls him to come forward and testify in a certain complaint preferred against CD before the grand jury for grand larceny (or other offence).

§ 71. WHEN PRISONERS MAY ALSO BE BROUGHT BEFORE COURTS AS

WITNESSES.

Whenever it shall appear to the court in which any indictment is pending, and to be tried against any person for any offence committed by him while imprisoned in any county prison or any one of the State prisons, on the person of any other individual confined in such jail or State prison, that any other person confined in any county prison or in any of the State prisons is an important witness in behalf of the person so indicted, such court is authorized to grant a writ of habeas corpus for the purpose of bringing such prisoner before such court, to testify upon the trial of such indictment, in behalf of the party making the application; and every person when brought up on such writ, may be examined as a witness on such trial, and shall be competent to testify thereon in behalf of the defendant or the people, notwithstanding his conviction and imprisonment.1

§ 72. FOREIGN AND POOR WITNESSES, HOW PAID.

When any person shall attend a court of oyer and terminer or a court of sessions as a witness, in behalf of the people of this State, upon the request of the public prosecutor, or upon a subpœna, or by virtue of a recognizance for that purpose, and it shall appear that such person has come from any other State or territory of the United States, or from any foreign country, or that such person is poor, the court may, by an order in its minutes, direct the county treasurer of the county in which the court shall be sitting, to pay to such witness such sum of money as shall seem reasonable for his expenses.2

When such foreign or poor witness makes an application to the court for compensation for his expenses, the following oath is administered to him:

"You shall true answers make to such questions as shall be put to you touching your application for the expenses of your attendance at this court as a witness, in behalf of the people of this State; so help you God."

Under this application, the witness may be allowed for traveling expenses and board, but cannot be paid for fees as such

witness.

A similar provision to the above, exists where the witness attends the circuit court upon the trial of an indictment removed from a court of oyer and terminer into the Supreme Court.1

The clerk of the court by which such order shall be made, is required to immediately make out and deliver a certified copy thereof to the person in whose favor the same is made, without exacting any fee for such service; and upon the production of such certified copy to the county treasurer, or as soon thereafter as he shall have sufficient moneys in his hands, he shall pay the person authorized to receive the same, or to the order of such person, the sum of money so directed to be paid, which shall be allowed to him in his accounts.2

§ 73. COMMISSIONS FOR WITNESSES.

In the absence of any statutory provision authorizing the people to issue a commission to examine witnesses, none exists. The statute, however, provides for the examination of witnesses upon a commission upon the behalf of the defendant, as follows: Whenever an issue of fact is joined upon any indictment, the defendant therein may apply to the court in which such indictment is pending, for a commission to examine any material witness residing out of this State, and such court may grant the same upon the same proof, and in the like cases and on similar terms as provided by law in civil cases; and the officer prosecuting in behalf of the State, shall be permitted to join in such commission, and to name witnesses on the part of the people."

Interrogatories to be annexed to such commission, shall be 'Laws 1846, ch. 59,

* 2 R. S., 753, §§ 25, 26.

2 R. S., 731, § 77. See practice in civil cases, 3 Hill, 295.

settled, and such commission shall be issued, executed and returned in the manner prescribed by law in respect to commissions in civil cases, and the depositions taken thereon shall be read in the same cases and with the like effect as in civil suits.1

Witnesses cannot be examined de bene esse at the instance of the public prosecutor after indictment found, though they may be at the instance of the defendant, and after issue joined upon an indictment, the defendant may examine witnesses residing out of the State upon commission, and the public prosecutor is entitled to join in the commission and name witnesses on the part of the people; but there is no authority at common law for taking depositions in criminal cases out of court without the consent of the defendant. The general rule in criminal cases is, that witnesses must appear in court and be confronted by the accused party, and the exception to this rule recognized at common law is that of dying declarations in prosecutions for homicide.2

§ 74. OF THE EXAMINATION OF WITNESSES CONDITIONALLY BY THE

DEFENDANT.

After an indictment shall be found against any defendant he may have witnesses examined in his behalf conditionally, on the order of a judge of the court in which the indictment is pending in the same cases, upon the like notice to the district attorney, and with the like effect in all respects as in civil suits.3

A deposition taken conditionally in the case of a charge for a criminal offence and before indictment, which is entitled in a court of sessions where there is no suit or proceeding pending, and in a suit which is not yet commenced, and which throughout refers to the accused not by their individual names but as defendants, cannot be read on the trial of an indictment afterwards preferred on that charge, because of the rule that on such a deposition the witness could not be convicted of perjury in false swearing.

§75. OF THE REMOVAL OF INDICTMENTS BEFORE TRIAL FROM THE

COURT OF SESSIONS TO THE COURT OF OYER AND TERMINER.

The Revised Statutes provide for the removal of indictments

2 R. S., 731, § 78.

3

2. R. S., 731, § 79.

• Peo. v. Restell, 3 Hill, 289.

4 Peo. v. Chrystal, 8 Barb., 545; vide § 73, ante.

from the courts of sessions to the courts of oyer and terminer of the same county; thus every person, against whom an indictment shall be pending in the court of sessions, may apply to any justice of the Supreme Court for an order to remove such indictment to the court of oyer and terminer of the county in which the same was found.1

The removal of indictments before trial from the court of sessions to the court of oyer and terminer, as above stated, is now by verified application and order thereon of a Supreme Court justice. The removal of indictments by certiorari from a court of sessions, before trial thereon, to the Supreme Court or to a court of oyer and terminer has been abolished.2

Where an indictment has been found at the sessions for an offence triable in that court, and the cause is subsequently removed into the oyer and terminer by an order of a circuit judge, the oyer and terminer has power to order the indictment to be sent back to the sessions for trial, and this without notice to the accused.3

No other person than the county judge of the county courts of the county of Erie, being of the degree of counsellor at law in the Supreme Court, or the justices of the supreme court or superior court, have power to allow any writ of certiorari, or make any order for the removal of any criminal cause from the court of sessions of said courts, and any one of such officers have such power. The recorder of the city of Buffalo and either of the Supreme Court or superior court judges, and no other persons, have the like power as to the recorder's court in said city. No such writ of certiorari shall be allowed or order made without an affidavit made, stating the facts and circumstances on which the application therefor is founded; nor shall any such writ be allowed or order made unless at least four days' notice in writing of the application therefor, shall have been served on the district attorney of said county, together with a copy of the affidavit on which such application is made. The district attorney shall then be allowed to

12 R. S., 732, § 86.

'2 R. S., 732, § 91.

• Peo. v. Sessions, 3 Barb., 144.

4

Laws 1846, ch. 142, § 1, as modified 1854, ch. 96, § 12, and 1857, ch. 361, § 1; 2 R. S., 710, § 36.