"4. If the witness decline answering a question, that fact, with the reason for which he declines answering it, as he gives it, must be stated;

"5. If papers or documents are produced before them, and proved by the witness, they must be annexed to his deposition, and be subscribed by the witness and certified by the commissioners;

"6. The commissioners must subscribe their names to each sheet of the deposition, and annex the deposition, with the papers or documents proved by the witness, to the commission, and must close it up under seal and address it, as directed thereon;

"7. If there be a direction on the commission, to return it by mail, the commissioners must immediately deposit it in the nearest postoffice. If any other direction be made, by the written consent of the parties, or by the officer, on the commission, as to its return, they must comply with the direction."

" 651. A copy of the last section must be annexed to the commission."

" 652. 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."

"653. 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."

❝g 654. 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."

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

to

❝g 656. The commission and return must at all times be open 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."

❝g 657. 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."

For authorities bearing upon the general subject of depositions, and conditional examination under the practice above outlined, see People v. Guidici, 100 N. Y. 507; People v. Ward, 4 Park. Crim. Rep. 516; Mauer v. People, 43 N. Y. 1; People v. Restell, 3 Hill, 289; Webster v. People, 92 N. Y. 422; People v. Vermilyea, 7 Cow. 369; People v. Squire, 3 N. Y. S. R. 194.

§ 246. Statement of the English and California Rule.—A deposition taken for the perpetuation of testimony in criminal cases, under 30 & 31 Vict. chap. 35, § 6, may be produced and read as evidence, either for or against the accused, upon the trial of any offender or offense to which it relates-if the deponent is proved to be dead or if it is proved that there is no reasonable probability that the deponent will ever be able to travel or to give evidence, and if the deposition purports to be signed by the justice by or before whom it purports to be taken, and if it is proved to the satisfaction of the court that reasonable notice of the intention

to take such deposition was served upon the person (whether prosecutor or accused) against whom it is proposed to be read, and that such person or his counsel or attorney had or might have had, if he had chosen to be present, full opportunity of crossexamining the deponent. Stephen, Dig. art. 141.

"1335. When a defendant has been held to answer a charge for a public offense, he may, either before or after an indictment or information, have witnesses examined conditionally, on his behalf, as prescribed by this chapter, and not otherwise.

" 1336. 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.

"Ş 1337. The application must be made upon affidavit, stating— 1. The nature of the offense 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.

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 not be able to attend the trial.

"S 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.

" 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 continued absence from the state. Upon reading 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.

"S 1346. Where a material witness for a defendant, under a criminal charge, is a prisoner in the state prison, or in the county jail or 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 deposi tion 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." Desty, Penal Code of California, chap. 4.

§ 247. Examination of Witnesses Conditionally for the Accused. As previously stated, the right to introduce a deposition in evidence in a criminal prosecution is regulated entirely by statute. In some jurisdictions provision is made for taking depositions for the benefit of the accused beyond the limits of the state, while denying such privilege to the prosecution. People v. Howard, 50 Mich. 241; Newton v. State, 21 Fla. 53. And it should be observed that where the local law countenances this method of procedure, the provisions of that law must be strictly followed. People v. Mitchell, 64 Cal. 85. So it has been held that the prosecution cannot read on the trial a deposition taken before trial, unless the defendant was present when the deposition was taken. Maurer v. People, 43 N. Y. 1; N. Y. Code Crim. Proc. § 8, subd. 3; 1 Bishop, Crim. Proc. (3d ed.) § 265. The absence of the prisoner has been held to render the deposition inadmissible. People v. Restell, 3 Hill, 289.

A deposition is not entitled to the same weight and credence as oral testimony. State v. Grant, 79 Mo. 113, 49 Am. Rep. 218. After reading a deposition in evidence, it has been held that the deponent cannot afterwards be examined orally at the same trial (State v. Kring, 74 Mo. 612); but the reason for this ruling seems rather unsatisfactory. Rapalje, Crim. Proc. § 279.

PART III.

EVIDENCE FOR THE PROSECUTION.

CHAPTER XXXIV.

EVIDENCE AFFORDED BY THE INDICTMENT.

§ 248. What Allegations must be Proved and what may be Suggested. 249. Phillips "Three Rules" Stated.

250. Characteristics of an Indictment. 251. Rule Observed in Framing.

252. Former Strictness Relaxed.

253. Names of Witnesses must be Indorsed upon Indictment. 254. Evidence of Time and Place.

255. Quashing Indictment Founded on Illegal Evidence Given before the Grand Jury.

256. When Evidence Introduced to Sustain Indictment may be Stricken out.

a. Examination of the Principle Affecting this Right to

Exclude.

b. Views of Justice McGowan and Others.

c. Prejudice must have Resulted or Incompetent Evidence will Stand.

d. When Incompetent Evidence is not Deemed Harmless. e. When Motion to Strike out must be Made.

§ 248. What Allegations must be Proved and what may be Suggested. In the present chapter it is proposed to consider, 1st. What allegations in an indictment must be proved to support it, and what may be disregarded in evidence; and 2d. With what precision those allegations, which cannot be disregarded in evidence, must be proved.

"1. In order to convict a man of an offense, all the material facts which constitute the offense, and which are necessary to enable the parties to avail themselves of the verdict and judgment, should the same charge be again brought forward, must be stated