§ 715. The attendance of the witness may be compelled by the officer, by a subpoena issued and subscribed by him, or by the clerk of the court, under the seal thereof.

§ 716. Disobedience to the subpoena, or a refusal to be sworn or to answer, as a witness, may be punished by the court or officer, as for criminal contempt of a court of record; and the witness shall also forfeit to the defendant, the sum of fifty dollars, which may be recovered in a civil action.

CHAPTER III.

Examination of witnesses on commission.

§ 717. 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.

§ 718. 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.

§ 719. 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, to take and certify the deposition of the witness, and to return it, according to the directions given with the commission.

§ 720. The application must be made upon affidavit, showing,

1. The nature of the offence 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 defence of the action :

4. That the witness resides out the state.

§ 721. The application, if made during the term, must be made to the court.

§ 722. 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 sessions of the city and county of New-York, to the recorder of that city, or to one of the three judges of the court of common pleas for that city and county:

3. When the indictment is pending in a may, r's or recorder's court, to the recorder of the city in which it is pending.

§ 723. 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 shall

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, with a copy of the affidavit upon which it is founded.

§ 724. If the court o 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 shall be made that a commission be issued to take his testimony.

§ 725. If the application for a commis:ion be granted the court or judge shall 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.

§ 726. When the commission is ordered, the defendant must serve upon the district attorney, without delay, a copy of the interrogatories to be annexed thereto, with notice of two days of their settlement before an officer, who might have granted the order out of term, as provided in section 722.

§ 727. The district attorney, may, in like manner serve upon the defendant or his counsel, cross-interrogatories to be annexed to the commission, with the like notice of the settlement thereof.

§ 728. In the interrogatories, either party may insert any question pertinent to the issue.

§ 729. Upon the settlement of the interrogatories, the judge shall expunge any question not pertinent to the issue, and shall modify the questions so as to conform them to the rules of evidence, and when settled, shall endorse upon them his allowance and annex them to the commission.

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§ 730. Unless the parties otherwise consent, by an endorsement upon the commission, the officer shall endorse thereon a direction, as to the manner in which it. shall 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.

§ 731. The commissioners or any one of them, unless otherwise specially directed, may execute the commission as follows:

1. They shall 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 shall cause the examination of the witness to be reduced to writing:

3. They shall write the answers of the witness; as near as possible in the language in which he gives them, and shall 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 any papers or documents are produced before them and proved by the witness they shall be annexed to his deposition and be subscribed by the witness, and certified by the commissioners:

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

7. If there be a direction on the commission to return it by mail, the commissioners shall 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.

§ 732. A copy of the last section must be annexed to the commission.

§ 733. If the commission and return be delivered by the commissioners to an agent, he must deliver the same 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 agent making