The last two sections are the same in substance as 2 R. S., 3d. ed., 488, sec. 2.

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

§ 687. If not made during the term, it may be made as follows:

1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions other than in the city 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 of New-York, to the recorder or city judge 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 city judge of the city in which it is pending.

The provision of the revised statutes, from which the last two sections are taken, but which, in terms, applies to civil actions only, directs the application to be made to a judge. 2 R. S., 3d. ed., 488, sec. 2. This should not be allowed in a criminal action, unless the court be not sitting.

§ 698. If the court or officer be satisfied, that the examination of the witness is necessary to the attainment of justice, an order must be made, that the witness be examined conditionally, at a specified time and place, and that a copy of the order, and of the affidavit on which it was granted, be served on the district attorney,

within a specified time before that fixed for the examination.

§ 689. If the order be made by the court, it may direct that the examination be taken before a judge thereof, or before a magistrate in the county, to be named in the order. If made by any of the officers mentioned in section 687, it must direct the examination to be taken before him.

690. On proof being furnished to the officer before whom the examination is appointed, of the service upon the district attorney, of a copy of the order, and of the affidavit on which it was granted, if no counsel appear on the part of the people, the examination must proceed.

Taken from 2 R. S. 3d ed., 489, sec. 5.

691. If the district attorney or other counsel appear on the part of the people, and it be shown to the satisfaction of the court or officer, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed.

Taken from 2 R. S., 3d ed., 488, sec. 4.

§ 692. The testimony given by the witness must be reduced to writing, and authenticated in the same man

ner as the testimony of a witness taken in support of an information, as prescribed in section 203.

§ 693. The deposition must be retained by the officer taking it, and filed by him in the office of the clerk of the court without unnecessary delay.

Founded upon 2 R. S. 3d ed. 489, sec. 6.

§ 694. The deposition, or a certified copy thereof, may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness or infirmity, or of his continued absence from the state.

Taken from 2 R. S, 3d. ed., 489, sec. 7.

§ 695. The deposition cannot, however, be read, if it appear that the copy of the order and of the affidavit on which it was founded, was not served on the district attorney, as directed, or that the examination was in any respect unfair or not conducted as prescribed in this chapter.

Taken from 2 R. S., 3d. ed., 489, sec. 8.

§ 696. Upon the reading of the deposition in evidence, the same objections may be taken to a question or answer contained therein, as if the witness had beeen examined orally in court.

Taken from 2 R. S., 3d. ed., 489, sec. 9.

§ 697. The attendance of the witness may be enforced, by a subpoena subscribed by the officer, or issued under the seal of the court.

Taken from 2 R. S. 3d. ed., 489, sec. 10, p. 320, 321.

§ 698. Disobedience to the subpoena, or a refusal to be sworn or to testify, may be punished by the court or officer, as for a criminal contempt, in the manner provided in the code of civil procedure; and the witness also forfeits to the defendant, the sum of fifty dollars, which may be recovered in a civil action.

See sec. 681, 682, of this code, p. 320, 321.

CHAPTER IV.

EXAMINATION OF WITNESSES, ON COMMISSION.

SECTION 699. Witness residing out of the state, to be examined for defendant, as

provided in this chapter.

700. In what cases defendant may apply for order to examine witnesses

on commission.

701. Commission, defined.

702. Application for commission, on what facts to be founded.

703. If during term, to be made to the court.

704. If not during term, to whom to be made.

705. Notice of application, when required and how given.

706. Order for commission, when granted.

707. Trial to be stayed until execution and return of commission.

708. Interrogatories, and notice of settlement.

709. Cross-interrogatories, and notice of settlement.

710, 711. What may be inserted in interrogatories.

712. Direction as to return of commission.

713. Commission, how executed.

714. Copy of last section to be annexed to commission.

715, 716. Commission, how returned, when delivered to agent for that

purpose.

717. When and how filed.

718. Commission returned by mail, how disposed of.

719. Commission and return to be open for inspection, and copies to be

furnished.

720. Deposition to be read in evidence. What objections may be taken

thereto.

This chapter is founded upon the section of the revised statutes, which provides, that when any issue of fact is joined upon any indictment, the defendant therein may apply to the court, in which such indictment is pending, 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 this state, shall be permitted to join in such commission, and to name witnesses on the part of the people. 2 R. S., 3d. ed., 816, Sec. 75. Interrogatories, to be annexed to such commission, shall be 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 and returned, shall be read in the same cases, and with the like effect, as in civil suits. Ibid. 817, sec. 76.

§ 699. 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.

§700. 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.

These sections are in conformity with the provisions of the revised statutes just cited.

§ 701. 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.