Page:Revised Codes of the State of North Dakota 1895.pdf/1492

§§ 8383-8386 3. A statement of the grounds on which an objection to a question on either side is sustained or on which the witness declines to answer it.

4. The signature of the witness to the deposition, or if he refuses to sign it, his reasons for refusing must be stated in writing as he gives them. In cases when the deposition is taken down in short hand, it must not be signed by the witness.

5. It must be certified by the magistrate when reduced to writing by him or under his direction, and signed by him.

When taken down in shorthand a transcript of the stenographer's record, certified by him as being a correct statement of the testimony of the witness and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings. The stenographer shall within five days after the close of such examination make a full and complete written or typewritten transcript of his shorthand record and deliver the same to the magistrate before whom the same was taken, and thereupon said magistrate must add his certificate as if reduced to writing by him, and transmit the same carefully sealed up to the clerk of the court in which the action is pending, or may come for trial.

§ 8383. Deposition may be read in evidence. The deposition or 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 depositions in evidence the same objections may be taken to a question or answer contained therein as if the witness had been examined orally in court.

§ 8384. Witness confined in penitentiary. Procedure. When a material witness for a defendant under a criminal charge is confined in the penitentiary, or in the county jail of 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 this code commencing with section 8374 and ending with section 8383, so far as applicable, govern in the application for and in the taking and use of such depositions. Such depositions may be taken before any magistrate or notary public of the county in which the penitentiary or jail is situated, or in case the witness is confined in the penitentiary and the defendant is unable to pay for taking the deposition, before the warden, 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.

ARTICLE 3.- TAKEN WITHOUT THE STATE.

§ 8386. Deposition, when witness not in state. When an issue of fact is joined upon an indictment or information, the defendant may have any material witness. residing out of the state, examined in his behalf as prescribed in this article, and not otherwise.

§ 8386. Commissioner. Interrogatories. Instruction. When a material witness for the defendant resides out of the state. 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 signa-

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