secured and in the presence of the jury, the inroad upon the constitutional protection was carried as far as it should be. It ought not to be extended to the evidence given upon a preliminary examination of a witness not dead, but not able to be found. People v. Newman, supra, sustains this proposition and it should be preserved. There is a wide distinction between a preliminary proceeding and a trial, and the cases to which reference has been made form no precedent for the section under consideration. Its passage is regarded as having been ill-advised and improvident, and its repudiation as a part of the law of the state should be declared at once."

Judge Cooley, whose pre-eminence as a jurist and logician has long since passed beyond the domain of cavil or dispute, sustains the position of Judge Brady, in language that admits of no misconception from the sixth edition of his incomparable work on Constitutional Limitations, at page 387 I excerpt the following:

"The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court. The defendant is entitled to be confronted with the witnesses against him; and if any of them be absent from the commonwealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances, but they are far from numerous. If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party. So, also, if a person is on trial for homicide, the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against the accused; the condition of the party who made them. being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most pow

Not that such evidence is of

erful considerations to tell the truth. very conclusive character; it is not always easy for the hearer to determine how much of the declaration related to what was seen and positively known, and how much was surmise and suspicion only; but it is admissible from the necessity of the case, and the jury must judge of the weight to be attached to it."

245. New York Criminal Code Provisions Stated.-While disclaiming any attempt to emphasize the provisions of the New York statutes, or to extend to them any extra-territorial effect I cannot ignore the fact that they have been found wonderfully effective in the administration of criminal justice, and have satisfactorily met the test imposed by many years of practical working. They are reproduced in this connection both as affording a practical exposition of the subject under review, and in the hope that their manifest merits may lead to their adoption in other jurisdictions especially in those whose criminal jurisprudence is conspicuously defective in that there is an utter failure to efficiently provide for the rights of one under criminal indictment who wishes to secure the testimony of a material witness without the state.

Chap. 3, " 620. When a defendant has been held to answer a charge of a crime, he may, either before or after indictment, have witnesses examined conditionally on his behalf."

"§ 621. When a material witness for the defendant is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally."

" 622. The application must be made upon the affidavit showing:

"1. The nature of the crime charged;

"2. The state of the proceedings in the action;

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

"4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial.

" 627. 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."

"§ 628. 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."

"§ 629. 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, as prescribed in section 200."

"S 630. 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."

" 631. The deposition, or certified copy thereof, may be read in evidence by either party on 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."

"§ 632. 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."

"S 633. Upon the reading of the deposition in evidence, the same objection may be taken to a question or answer contained therein as if the witness had been examined orally in court."

"g 634. The attendance of the witness may be enforced, by a subpoena subscribed by the officer, or issued under the seal of the court."

"§ 635. Disobedience to the subpoena, or a refusal to be sworn or to testify, may be punished by the court or officer, as prescribed in section 619."

Chap. 4, " 636. 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."

"S 637. 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."

" 638. 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."

"639. The application must be made upon affidavit, showing: "1. The nature of the crime 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 defense of the action;

"4. That the witness resides out of the state."

" 640. The application, if made during the term, must be made to the court."

"3641. 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 general sessions in the city and county of New York, to the recorder or city judge or judge of general sessions, or to 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 judge of the court in which it is pending."

"642. 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 must prescribe the manner of giving the If made to one of the officers mentioned in the last section, the application must be upon five days' notice to the district attorney served, with a copy of the affidavit upon which it is founded."

same.

"g 643. If the court or 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 must be made that a commission be issued to take his testimony,

and that the people be permitted to join in the commission, and to examine witnesses in support of the indictment."

" 644. If the application for a commission be granted, the court or judge must 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."

"S 645. When the commission is ordered, the defendant must serve upon the district attorney, and the district attorney, if he intend to join in the commission and examine witnesses in support of the indictment, must serve upon the defendant or his counsel, a copy of the interrogatories to be annexed thereto, with a notice to two days of their settlement, before an officer who might have granted the order out of term, as provided in section 641.”

"§ 646. The district attorney, and the defendant, may, in the same manner, serve cross-interrogatories, to be annexed to the commission, with the like notice of the settlement thereof."

" 647. In the interrogatories, either party may insert any question pertinent to the issue."

" 648. Upon the settlement of the interrogatories, the judge must expunge every question not pertinent to the issue, and modify the questions, so as to conform them to the rules of evidence, and when settled, must indorse upon them his allowance, and annex to them the commission."

" 640. Unless the parties otherwise consent, by an indorsement upon the commission, the officer 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 indictment is pending, designating his name and the place where his office is kept."

"S 650. The commissioners, or any one of them, unless otherwise specially directed, may execute the commission as follows:

"1. They 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. They must cause the examination of the witness to be reduced to writing;

"3. They must write the answers of the witness, as nearly 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 is made conformable to what he declares the truth;