examination prescribed in section 203 of this code, p. 95, in respect to taking the testimony of witnesses by a magistrate, on the examination of the case.

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

Taken from 2 R. S., 3d ed. 491, sec. 17.

§ 715. If the commission and return be delivered by the commissioners to an agent, he must deliver it 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 affidavit of the agent, that he received it from the hands of one of the commissioners, and that it has not been opened or altered since he received it.

The same in substance, as 2 R. S., 3d ed. 491, sec. 18.

§ 716. If the agent be dead, or from sickness or other casualty, unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent, that the agent is dead, or from sickness or other casualty, unable to deliver it, that it has not been opened or altered since the person making the affidavit received it, and that he believes it has not been opened or altered, since it came from the hands of the commissioners.

The same in substance, as 2 R. S., 3d ed. 491, sec. 19.

§ 717. The clerk or judge receiving and opening the commission and return, must immediately file it, with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending.

The same in substance, as 2 R. S., 3d ed. 491, sec. 20.

§ 718. If the commission and return be transmitted by mail, the clerk to whom it is addressed, must receive it from the post office, and open and file it in his office, where it must remain, unless the court otherwise direct.

The same in substance, as 2 R. S., 3d ed. 491, sec. 21.

§719. The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same, or of any part thereof, on payment of his fees, at the rate of five cents for every hundred words.

The same in substance, as 2 R. S. 3d. ed. 491, 492, sec. 23.

§ 720. The deposition, taken under the commission, may be read in evidence by either party on the trial, and the same objections may be taken to a question in the interrogatories, or to an answer in the deposition, as if the witness had been examined orally in court.

The same in substance, as 2 R. S. 3d. ed. 492, sec. 24.

CHAPTER. V.

INQUIRY INTO THE INSANITY OF THE DEFENDANT, BEFORE TRIAL, OR AFTER CONVICTION.

SECTION 721. An insane person cannot be tried, sentenced or punished for a public offence.

722. When doubt arises as to sanity of defendant, on calling indictment for trial, or defendant for judgment, jury to be ordered and impanelled, to try the question.

723. Trial or judgment to be suspended, until question of insanity determined.

724. Order of the trial of the question of insanity.

725. Charge of the court.

726. If defendant found sane, trial to proceed, or judgment to be pronounced.

727. If found insane, trial or judgment suspended, and defendant to be committed to state lunatic asylum, if his discharge be dangerous to the public peace or safety.

728. If defendant committed, bail exonerated or deposit of money refunded.

729. Detention of defendant in asylum, and proceedings on his becoming sane.

730. Expenses incident to sending defendant to asylum, how paid.

§ 721. An act done by a person in a state of insanity, cannot be punished as a public offence; nor can a person be tried, adjudged to punishment, or punished, for a public offence, while he is insane.

Taken from 2 R. S. 3d ed. 784, 785, sec. 2.

§ 722. When an indictment is called for trial, or, upon conviction, the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impanelled, from the jurors summoned and returned for the term, or who may be summoned by direction of the court, as provided in sections 389 to 394, both inclusive, to inquire into the fact.

§ 723. The trial of the indictment or the pronouncing of the judgment, as the case may be, must be suspended, until the question of insanity is determined by the verdict of the jury.

The last two sections are in conformity to the existing practice.

§ 724. The trial of the question of insanity must proceed, in the following order:

1. The counsel for the defendant must open the case, and offer evidence in support of the allegation of insanity:

2. The counsel for the people may then open their case, and offer evidence in support thereof:

3. The parties may then respectively offer rebutting testimony only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.

4. When the evidence is concluded, unless the case is submitted to the jury, on either side or on both sides, without argument, the counsel for the people must commence, and the defendant or his counsel may conclude the argument to the jury.

5. If the indictment be for an offence punishable with death, two counsel on each side may argue the cause to the jury; in which case, they must do so alternately. If it be for any other offence, the court may, in its discretion, restrict the argument to one counsel on each side.

6. The court must then charge the jury.

This section, with the exception of the fifth subdivision, is adapted from section 440. The reasons given in the note to that section, p. 206—209, are equally applicable to this. The fifth subdivision is taken from section 442, p. 209.

§ 725. The provisions of sections 474 and 476, in respect to the duty of the court upon questions of law, and of the jury upon questions of fact, and the provisions of section 477, in respect to the charge of the court to the jury, upon the trial of an indictment, apply to the trial of the question of insanity.

See the notes to sec. 474, 476, 477, p. 223, 224.

§ 726. If the jury find the defendant sane, the trial of the indictment must proceed, or judgment may be pronounced, as the case may be.

§ 727. If the jury find the defendant is insane, the trial or judgment must be suspended, until he become sane; and the court, if it deem his discharge dangerous to the public peace or safety, may order that he be, in the mean time, committed by the sheriff to the state lunatic asylum, and that upon his becoming sane, he be re-delivered by the superintendent of the asylum to the sheriff.

Conformable to 1 R. S. 3d ed. 813, sec. 44.

§ 728. The commitment of the defendant, as mentioned in the last section, exonerates his bail, or entitles a person authorised to receive the property of the defen[CRIM. CODE.]

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