Legislation § 1328. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., §§ 614, 615); based on Crim. Prac. Act, Stats. 1851, p. 274, §§ 554, 555, which read: "§ 554. A peace-officer must serve within his county 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. § 555. The service of a subpoena shall be by showing the original to the witness personally, and informing him of the contents."

2. Amendment by Stats. 1901, p. 495; unconstitutional. See note, § 5, ante.

§ 1329. Fees of witnesses, when from without county. When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, upon a subpoena or in pursuance of an undertaking, and it appears that he has come from a place outside of the county, or that he is poor and unable to pay the expenses of such attendance, the court, at its discretion, if the attendance of the witness be upon a trial, by an order upon its minutes, or, in any other case, the judge, at his discretion, by a written order, may direct the county auditor. to draw his warrant upon the county treasurer in favor of witness for a reasonable sum, to be specified in the order, for the necessary expenses of the witness. [Amendment approved 1876; Code Amdts. 1875-76, p. 117.]

Legislation § 1329. 1. Enacted February 14, 1872; in substance the same as Crim. Prac. Act, Stats. 1851, p. 274, §§ 556, 557. When enacted in 1872, § 1329 read: “1329. 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 upon its minutes, or, in any other case, the county judge, 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. 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."

2. Amended by Code Amdts. 1875-76, p. 117.

§ 1330. Witness residing or served with subpoena out of the county, 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 offense is triable, or a justice of the supreme court, or a judge of a superior court, upon an affidavit of the district attorney or prosecutor, or of the defendant, or his counsel, stating that he believes 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. [Amendment approved 1880; Code Amdts. 1880, p. 34.]

Compelling attendance of witnesses: See post, § 1513.

Legislation § 1330. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 618); in substance the same as Crim. Prac. Act, Stats. 1851, p. 274, § 558.

2. Amended by Code Amdts. 1880, p. 34, substituting "a judge of a superior court" for a "county judge.”

§ 1331. Disobedience to subpoena, etc. Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the court or magistrate as a contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he show good cause for his nonattendance, is liable to the defendant in the sum of one hundred dollars, which may be recovered in a civil action. Contempts: Code Civ. Proc., §§ 1209-1222.

Legislation § 1331. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 619); in substance the same as Crim. Prac. Act, Stats. 1851, p. 274, §§ 559, 561.

§ 1332. Failure to appear, undertaking forfeited. When a witness has entered into an undertaking to appear, upon his failure to do so the undertaking is forfeited in the same manner as undertakings of bail.

Legislation § 1332. Enacted February 14, 1872; based on Crim. Prac. Act, Stats. 1851, p. 274, § 560, which read: "§ 560. Where a witness has entered into a recognizance to appear, as provided in 'section one hundred and seventieth, upon his failure to do so his recognizance shall [be] forfeited in the same manner as recognizances of bail."

§ 1333. Manner of producing prisoner as witness. If prison is out of county in which application is made. When the testimony of a material witness is required in a criminal action, before a court of record of this state, or in an examination before a grand jury or magistrate for an offense triable in the superior court and such witness is a prisoner in a state prison or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, grand jury or magistrate, may be made by the superior court of the county in which such action or examination is pending or by a judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall be made only upon the affidavit of the district attorney or prosecutor, or of the defendant or his counsel, stating that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of said superior court or a judge thereof. The order shall be executed by the

sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, grand jury or magistrate, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be a proper charge against, and shall be paid by, the county in which the order shall be made. [Amendment approved 1915; Stats. 1915, p. 731.]

Deposition of prisoner, when and how taken: See post, § 1346. Prisoner as witness, proceedings on bringing in: See post, § 1567. Legislation § 1333. 1. Added by Code Amdts. 1877-78, p. 123, and then read: "When the testimony of a material witness for the people is required in a criminal action, before a court of record of this state, and such witness is a prisoner in the state prison, or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, may be made by the court in which the action is pending, or by the judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall only be made upon the affidavit of the district attorney, or other person, on behalf of the people, showing that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of the court or judge. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be paid by the county in which the order shall be made."

2. Amended by Stats. 1913, p. 238, to read: "When the testimony of a material witness for the people is required in a criminal action, before a court of record of this state, or in an examination before a grand jury or magistrate for an offense triable in the superior court and such witness is a prisoner in a state prison or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, grand jury or magistrate, may be made by the superior court of the county in which such action or examination is pending or by a judge thereof; but in case the prison or jail is out of the county in which the application is made, such order shall be made only upon the affidavit of the district attorney or other person, on behalf of the people, stating that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of said superior court or a judge thereof. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall be to bring the prisoner before the proper court, grand jury or magistrate, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be a proper charge against, and shall be paid by, the county in which the order shall be made."

3. Amended by Stats. 1915, p. 731.

§ 1336.

CHAPTER IV.

Examination of Witnesses Conditionally.

§ 1335. Examination of witnesses conditionally.
In what cases an order may be applied for.
Application, how made.
Application, to whom made.

§ 1337.

$1338.

1339.

§ 1340.

1341.

§ 1342. § 1343.

§ 1344.

§ 1345. § 1346.

Order, what to contain.

Defendant has right to be present at examination.
Examination not to proceed, when.

Attendance of witness, how enforced.
Testimony, how taken and authenticated.
Deposition to be transmitted to clerk.

When may be read in evidence. Subject to objections, etc.
Deposition of witnesses who are prisoners in other counties.

§ 1335. Examination of witnesses conditionally. When a defendant has been held to answer a charge for a public offense, he, in all cases, and the people in cases other than of homicide, may, either before or after an indictment or information, have witnesses examined conditionally in his or their behalf, as prescribed in this chapter. [Amendment approved 1905; Stats. 1905, p. 702.]

Legislation § 1335. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 620); in substance the same as Crim. Prac. Act, Stats. 1851, p. 274, § 562. When enacted in 1872, § 1335 read: "1335. When a defendant has been held to answer a charge for a public offense, he may, either before or after an indictment, have witnesses examined conditionally, on his behalf, as prescribed in this chapter, and not otherwise."

2. Amended by Code Amdts. 1880, p. 27, inserting "or information" after "indictment."

3. Amendment by Stats. 1901, p. 496; unconstitutional. See note, § 5, ante.

4. Amended by Stats. 1905, p. 702; the code commissioner saying in his note to §§ 1335-1341, "By the amendment to the above sections, the provisions of the statute respecting the conditional examination of witnesses have been extended so far as may be constitutionally done, to the end that the prosecution, except in cases of homicide, may have the same privilege as the accused of taking conditionally the testimony of witnesses who are about to leave the state, or who are so sick and infirm as to afford reasonable grounds for apprehending that they will be unable to attend the trial. The proposed change is within the contemplation of that part of § 13 of article I of the constitution, which provides that the legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than cases of homicide, when there is reason to believe that the witness, from inability or other cause, will not attend the trial.'"

§ 1336. In what cases an order may be applied for. When a material witness for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to

afford reasonable grounds for apprehension that he will be unable to attend the trial, the defendant or the people may apply for an order that the witness be examined conditionally. [Amendment approved 1905; Stats. 1905, p. 702.]

Legislation § 1336. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 621); reading the same as Crim. Prac. Act, Stats. 1851, p. 275, § 563, but omitting the words "on a commission" from end of section. When enacted in 1872, § 1336 read: "1336. 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."

2. Amendment by Stats. 1901, p. 496; unconstitutional. See note, § 5, ante.

3. Amended by Stats. 1905, p. 702. See ante, Legislation § 1335, for code commissioner's note.

§ 1337. Application, how made. The application must be made upon affidavit stating:

1. The nature of the offense 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 or the prosecution of the action;

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 not be able to attend the trial [Amendment approved 1905; Stats. 1905, p. 703.]

Legislation § 1337. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 622); based on Crim. Prac. Act, Stats. 1851, p. 275, § 566, which, in subd. 3, did not have the words "and residence" after "The name."

2. Amendment by Stats. 1901, p. 496; unconstitutional. See note, § 5, ante.

3. Amended by Stats. 1905, p. 703, in subd. 3, adding "or the prosecution" after "material to the defense." See ante, Legislation § 1335, for code commissioner's note.

§ 1338. Application, to whom made. The application may be made to the court or a judge thereof, and must be made upon three days' notice to the opposite party. [Amendment approved 1905; Stats. 1905, p. 703.]

Legislation § 1338. 1. Enacted February 14, 1872 (N. Y. Code Crim. Proc., § 623); in substance the same as Crim. Prac. Act, Stats. 1851, p. 275, § 567. When enacted in 1872, § 1338 read: "1338. The application may be made to the court during the term thereof, or to the judge in vacation, and must be upon three days notice to the district attorney."

2. Amended by Code Amdts. 1880, p. 5, to read: "1338. The application may be made to the court, or to a judge thereof, and must be upon three days' notice to the district attorney."