Page:Revised Codes of the State of North Dakota 1895.pdf/1490

§§ 8371-8374 § 8371. Witness for defendant, disobeying subpoena. A witness disobeying a subpæna issued on the part of the defendant in a criminal action, unless he shows good cause for his nonattendance, is liable to the defendant in the sum of fifty dollars, which may be recovered in a civil action.

§ 8372. Witness. Forfeiture of undertaking. When a witness has entered into an undertaking to appear, upon his failure to do so, the undertaking is forfeited in the same manner as under- takings of bail.

§ 8373. Witness for state confined. How attendance effected. When the testimony of a witness for the state is required in a criminal action, before a court of record of this state, and such witness is confined in the penitentiary or in a county jail. an order for his temporary removal from the penitentiary or such jail and for his production before such court, may be made by the court in which the action is pending or by the judge authorized by law to preside at the trial of such action, but in case the penitentiary or such jail is not in the county in which the application is made, such order shall only be made upon the affidavit of the state's attorney or some other person on behalf of the state showing that the testimony is material and necessary, and even then the granting of the order shall be in the discretion of the court or such judge. The order must be executed by the sheriff of the county in which it is made in the following manner:

1. If the person required as a witness is confined in the penitentiary, by delivering to the warden thereof a copy of such order, and it shall be the duty of the warden to deliver the person so required to such officer and to take such officer's receipt for such person indorsed upon the copy of such order; or,

2. If the person required as a witness is confined in the county jail, by delivering to the jailer a copy of such order and it shall be the duty of the jailer to deliver the person so required to such officer, and take such officer's receipt for such person indorsed upon said copy of such order.

It shall be the duty of the officer receiving any such person to take him before the proper court, safely to keep him, and when he is no longer required as a witness, to return him to the custody from which he was received. Neither the warden nor the jailer shall be responsible for any such person until his return, and upon the return of any such person the warden or jailer, as the case may be, shall indurse his receipt upon the original order. The sheriff executing any such order shall return the same to the clerk of the district court of the county from which it was issued, and said clerk shall file and preserve the same among the papers in the action. The expense of executing such order shall be paid by the county in which the order shall be made.

ARTICLE 2.- DEPOSITIONS IN CRIMINAL ACTIONS.

§ 8374. Right of defendant to take. When defendant has been held to answer a charge for a public offense, he may either before or after an information has been filed or an indictment has been found, have witnesses examined conditionally, on his behalf as prescribed in this article and not otherwise.

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