Page:1887 Compiled Laws of Dakota Territory.pdf/1229

Depositions.

§ 7551. When an issue of fact is joined upon an indictment or information, the defendant may have any material witness, residing out of the territory, examined in his behalf as prescribed in this article, and not otherwise.

§ 7552. When a material witness for the defendant resides out of the territory, the defendant may apply for an order that the witness be examined on a commission, to be issued under the seal of the court, and the signature of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and certify the deposition of the witness and return it according to the instructions given with the commission.

§ 7553. 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 the 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 territory.

§ 7554. The application may be made to the court or judge himself, and must be upon five days' notice to the district attorney.

§ 7555. If the court or judge 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 or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.

§ 7556. When the commission is ordered the defendant must serve upon the district attorney, without delay, a copy of the interrogatories to be annexed thereto, within three 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 like notice. In the interrogatories, either party may insert any question pertinent to the issue. When the interrogatories and cross interrogatories are presented to the court or judge, according to the notice, the court or judge must modify the questions, so as to conform them to the rules of evidence, and must indorse upon them his alterations, and annex them to the commission.

§ 7557. Unless the parties otherwise consent by an indorsement upon the commission, the court or judge must indorse thereon the direction and manner in which it must be returned, and may in his discretion direct that it be returned by mail or otherwise, addressed to the of the court in which the action is pending, designating his name, and the place where his office is kept.