Page:1887 Compiled Laws of Dakota Territory.pdf/1227

Depositions.

§ 7540. When a defendant has been held to answer a charge for a public offense, he may either before or after indictment or information, have witnesses examined conditionally on his behalf as prescribed in this chapter, and not otherwise.

§ 7541. When a material witness for the defendant is about to leave the territory, 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.

§ 7542. 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 territory, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial.

§ 7543. The application may be made to the court or to a judge thereof, and must be made upon five days' notice to the district attorney.

§ 7544. 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.

§ 7545. 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.

§ 7546. 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 territory, or is not sick or infirm, or that the application was made to avoid the examination of the witness on trial, the examination cannot take place; otherwise, it must proceed.

§ 7547. The attendance of the witness may be enforced by subpoena issued by the magistrate before whom the examination is to be taken, or from the court where the trial is to be had.

§ 7548. The testimony given by the witness must be reduced to writing. The magistrate before whom the examination is had may, in his discretion, order the testimony and proceedings to be taken down in short hand, and for that purpose