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$100 to appear at, &c., to testify for the people in the above cause, is not a recognizance and cannot be sued as such.1

§ 63. WITNESSES IN SUCH CASES MAY BE ATTACHED AND PROSECUTED

FOR FAILURE TO APPEAR.

The court before whom any witness on the part of the people, in a criminal prosecution, shall have been recognized to appear by recognizance taken before a magistrate or a court of record having criminal jurisdiction, may proceed against such witness for any default in appearing pursuant to the condition of his recognizance by process of attachment, in the same manner and with like proceedings therein as if such witness had failed to appear in obedience to a subpoena; and the recognizance of such witness filed with the clerk or the court, if taken before a magistrate, or the record of the recognizance, if taken before a court of record, and the entry in the minutes of the clerk of the court of the default of such witness shall be sufficient evidence for issuing such process of attachment. The issuing of an attachment against a witness, as above provided, is not a bar to the prosecution of his recognizance. District attorneys are prohibited from receiving any fees for the appearance of any witness who shall have been recognized to appear in the same prosecution and at the same court designated in such subpœna.?

Before an attachment is issued in case of the failure to appear of a witness, who has been placed under a recognizance to appear and testify, a proclamation should be made by the crier for the witness to appear the same as in case of disobedience to a subpœna duly served.

§ 64. PRISONERS IN JAIL ALLOWED TO CONVERSE WITH THEIR

COUNSEL.

Persons detained for trial may converse with their counsel and with such other persons as the keeper, in his discretion, may allow, but prisoners under sentence shall not be permitted to hold any conversation with any person except the keepers or inspectors of the prison, unless in the presence of a keeper or inspector.3

Peo. v. Rundle, 6 Hill, 506.

* Laws of 1845, ch. 180, § 20.

* 2 R. S., part 4, chap. 3, tit. 1, art. 1, § 7.

§65. PRISONERS, WHEN NOT TO BE REMOVED BY HABEAS CORPUS

DURING SESSION OF OYER AND TERMINER.

After the court of oyer and terminer shall commence its sessions in any county no prisoner, detained in the common jail of any such county upon any criminal charge, shall be removed. therefrom by any writ of habeas corpus, unless such writ shall have been issued by such court of oyer and terminer or shall be made returnable before it.1

§ 66. OF SUBPOENAS FOR WITNESSES FOR THE PEOPLE. The district attorney of every county has power to issue subpoenas for witnesses in support of any prosecution to appear at any court without the seal of such court, and every such subpœna, subscribed by the district attorney issuing the same, is as valid and effectual as if the seal of the court at which any witness named therein is required to appear had been affixed thereto.2

§ 67. SUBPOENAS FOR THE DEFENDANT, AND HOW ISSUED. The clerk of any county in which an indictment shall be found, or any proceeding before the sessions shall be instituted, upon the application of the defendant, without requiring any fees, shall issue subpoenas, as well during the sitting of any court as in vacation, for such witnesses as such defendant shall require residing in or out of the county.3

If such subpoena be issued to compel the attendance of any witness at any court of sessions it shall be issued under the seal of the county court of the county, shall be tested in the name of the first or senior judge of such county, and on the day 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.4

If such subpœna be issued to compel the appearance of any witness at any court of oyer and terminer, it shall be issued under the seal of such court, if there be one; and if there be

none under the seal of the county court of the county, shall be tested in the name of the circuit judge of the circuit on the day

12 R. S., part 4, chap. 3, tit. 1, art. 2, § 27.

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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 subpoenas 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 SUBPOENA.

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 subpœna 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

12 R. S., 729, § 64. 22 R. S., 729, § 67. 2 R. S., 730, § 69. 2 R. S., 729, § 68.

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 C D 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

R. S. 5th ed., vol. 3, p. 1101, §§ 178, 179. 22 R. S., 753, § 23.

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 pend ing, 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.3

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.

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