1338. The application may be made to the court, or to a judge thereof, and must be made upon three days' notice to the district attorney. [In effect March 12th, 1880.]

1339. If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and that a copy of the order be served on the district attorney, within a specified time before that fixed for the examination.

1340. The order must direct that the examination be taken before a magistrate named therein, and on proof being furnished to such magistrate of service upon the district attorney of a copy of the order, if no counsel appear on the part of the people, the examination must proceed.

1341. If the district attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the magistrate, 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.

1342. The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken.

1343. The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information.

1344. The deposition taken must, by the magistrate, be sealed up and transmitted to the clerk of the court in which the action is pending or may come for trial.

1345. 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 con

tinued absence from the State. Upon reading the deposition in evidence, the same objections may be taken to a question or answer contained therein as if the witness had been examined orally in court.

The proper practice is to take the testimony of the witnesses in writing, and return it to the District Court as required by statute-44 Cal. 459.

Depositions in evidence.-Depositions are admissible in evidence -44 Cal. 452. The deposition of a witness, given before the coroner's jury and certified and returned by the coroner as required by statute, is admissible for the purpose of contradicting the statement of the witness made under oath-44 Cal. 459. It must set forth the actual compliance with all the requirements of the statute-6 Cal. 559. If a magistrate, in taking a deposition, erroneously excludes a question asked of a witness, the error does no injury if the question asked was immaterial-50 Caí. 139.

Depositions taken under section 869 are not admissible against defendant under section 686 unless taken in the manner and form, and certified as required by section 869. If certified by a mere jurat, is not admissible-54 Cal. 575. Depositions cannot, in general, be used against the prisoner, nor in his favor, unless by his consent-7 Smedes & M. 475. Depositions taken before commitment, or otherwise than as specially provided by the Code, cannot be used against the defendant-6 Cal. 203.

1346. When a material witness for a defendant, under a criminal charge, is a prisoner in the State prison, or in the county jail of a county other than that in which the defendant is to be tried, his deposition may be taken, on behalf of the defendant, in the manner provided for in the case of a witness who is sick, and the provisions of the Penal Code, commencing with section thirteen hundred and thirty-five, and ending with section thirteen hundred and forty-five, shall, so far as applicable, govern in the application for and in the taking and use of such deposition. Such deposition may be taken before any magistrate or notary public of the county in which the jail or prison is situated; or in case the witness is confined in the State prison, and the defendant is unable to pay for taking the deposition, before the warden or clerk of the board of directors of the State prison, whose duty it shall be to act without compensation. Every officer, before whom testimony shall be taken by virtue hereof, shall have authority to administer, and shall administer, an oath to the witness that his testimony shall be the truth, the whole truth, and nothing but the truth. [In effect April 9th, 1880.]

CHAPTER V.

EXAMINATION OF WITNESSES ON COMMISSION.

§ 1349. Examination of witness residing out of the State.

§ 1350. When defendant may apply for an order to examine.

§ 1351. Commission defined.

§ 1352. Application made on affidavit.

§ 1353. Application, to whom made.

$1354. Order for commission, when granted, stay of proceedings.

§ 1355. Interrogations, how settled and allowed.

1356. Direction as to the return of the commission.

1357. Commission, how executed.

§ 1358. Returned commission, delivered to an agent.

1361. Commission and return, open for inspection. Copies, etc. § 1362. Depositions to be read in evidence. Objections.

1349. When an issue of fact is joined upon an indictment or information, the defendant may have any material witness, residing out of the State, examined in his behalf, as prescribed in this chapter, and not otherwise. [In effect April 9th, 1880.]

1350. 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.

1351. A commission is a process issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission.

1352. The application must be made upon affidavit, stating:

1. The nature of the offense charged.

2. The state of the proceedings in the action, and that an issue of fact has been joined therein.

3. The name of the witness, and that his testimony is material to the defense of the action.

4. That the witness resides out of the State.

1353. The application may be made to the court, or a judge thereof, and must be upon three days' notice to the district attorney. [In effect March 12th, 1880.]

1354. If the court to whom the application is made is satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony; and the court may insert in the order a direction that the trial be stayed for a specified time, reasonably sufficient for the execution and return of the commission. [In effect April 9th, 1880.]

1355. 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 two days' notice of the time at which they will be presented to the court or judge. 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. In the interrogatories either party may insert any questions pertinent to the issue. When the interrogatories and cross-interrogatories are presented to the court or judge, according to the notice given, the court or judge must modify the questions so as to conform them to the rules of evidence, and must indorse upon them his allowance and annex them to the commission.

1356. Unless the parties otherwise consent, by an indorsement upon the commission, the court or judge must indorse thereon a direction as to the manner in which it must 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 action is pending, designating his name and the place where his office is kept.

1357. The commissioner, unless otherwise specially directed, may execute the commission as follows:

1. He must 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. He must cause the examination of the witness to be reduced to writing, and subscribed by him.

3. He must write the answers of the witness as near as possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it until it conforms to what he declares is the truth. 4. If the witness decline answering a question, that fact, with the reason assigned by him for declining, must. be stated.

5. If any papers or documents are produced before him and proved by the witness, they, or copies of them, must be annexed to the deposition subscribed by the witness and certified by the commissioner.

6. The commissioner must subscribe his name to each sheet of the deposition, and annex the deposition, with the papers and documents proved by the witness, or copies thereof, to the commission, and must close it up under seal, and address it as directed by the indorsement thereon.

7. If there be a direction on the commission to return it by mail, the commissioner must immediately deposit it in the nearest post-office. If any other direction' be made by the written consent of the parties, or by the court or judge, on the commission, as to its return, the commissioner must comply with the direction.

A copy of this section must be annexed to the commission. [Approved March 30th, in effect July 1st, 1874.]

1358. If the commission and return be delivered by the commissioner to an agent, he must deliver the same