Page:Revised Codes of the State of North Dakota 1895.pdf/1491

Witnesses and Evidence. $ 8375. In case of sick witness. 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.

§ 8376. Application. Affidavit, what to contain. 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 atford reasonable grounds for apprehending that he will not be able to attend the trial.

§ 8377. Same. Notice of. The application may be made to the court or to a judge thereof, and must be made upon three days notice to the state's attorney.

§ 8378. Court to issue order for examination. 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 state's attorney within a specified time before that fixed for the examination.

§ 8379. Contents of order. Service. 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 state's attorney of a copy of the order, if no counsel appears on the part of the state, the examination must proceed.

§ 8380. When examination shall not proceed. If the state's attorney or other counsel appears on behalf of the state, 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.

§ 8381. How attendance of witness enforced. The attendance of the witness may be enforced by subpuna issued by the magistrate before whom the examination is to be taken, or from the court where the trial is to be had.

§ 8382. Testimony must be written. Authentication. The testimony of the witness must be taken down in writing by the magistrate or by some person under his direction; or the magistrate may, in his discretion, order the testimony and proceedings to be taken down in shorthand and for that purpose he may appoint a stenographer. The deposition or testimony of the witness must show and contain:

1. The name of the witness, his age, his place of residence, and his business or profession.

2. The questions put to the witness and his answers thereto, consecutively as the questions are asked and answers given. Each answer must be distinctly read to the witness as it is taken down and corrected or added to until it conforms to what be declares to be the truth. But in cases when the testimony is taken down in shorthand the answer or answers need not be read to him.

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